Filed 1/20/22 P. v. Felix CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078931
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1100211)
ALFREDO FELIX,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
John D. Molloy, Judge. Reversed and remanded with directions.
Eric S. Multhaup, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Paige B.
Hazard, and Steve Oetting, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
This appeal is from the summary denial of a petition for resentencing
under Penal Code1 section 1170.95. The trial court based the summary
denial of the petition on the original jury conviction of first degree murder
with a robbery murder special circumstance. The trial court found the true
finding on the special circumstance made the petitioner ineligible for relief as
a matter of law.
We recognize there is disagreement among the Courts of Appeal on how
to deal with such special circumstances findings when a petition for
resentencing is at the prima facie stage of review when the findings were
made prior to the clarification our Supreme Court made in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark). The court, in those cases, redefined the requirements to show an
aider and abettor was a major participant in the crime and acted with
reckless indifference to human life in order to apply the special circumstance
allegation to that person.
We conclude it is improper to deny a 1170.95 petition at the prima facie
stage of review based only on special circumstance findings made prior to the
opinions in Banks and Clark. We will follow the reasoning from our opinion
in People v. Arias (2021) 66 Cal.App.5th 987, review granted September 29,
2021, S270555 (Arias) and reverse the summary denial of the petition in this
case and remand for further proceedings.
1 All further statutory references are to the Penal Code.
2
FACTS AND PROCEDURAL BACKGROUND
In 2013, a jury convicted Alfredo Felix2 of first degree murder (§ 187,
subd. (a)), and robbery (§ 211) and found true an allegation that the murder
occurred during a robbery (§ 190.2, subd. (a)(17)(A)). The jury found an
alleged enhancement for personal use of a firearm to be not true. Alfredo was
sentenced to life without parole plus five years in prison.
Alfredo appealed and this court affirmed the judgment in an
unpublished opinion, People v. Felix, D066686 (Mar. 25, 2015).
In January 2021, Alfredo filed a petition for resentencing under
section 1170.95. The court appointed counsel, received briefing, and held a
brief hearing. The court summarily denied the petition without issuing an
order to show cause (OSC) or conducting an evidentiary hearing. The court
concluded the true finding on the robbery murder special circumstance
established Alfredo was a major participant in the crime and acted with
reckless disregard for human life as a matter of law even though the findings
were made before the Banks and Clark cases were decided. The court
recognized there is a split of authority among the Courts of Appeal and opted
to follow the view that pre-Banks and Clark special circumstance findings for
aiders and abettors in murder cases render the defendant ineligible for
section 1170.95 relief as a matter of law.
Alfredo filed a timely notice of appeal.
The facts of the crime are set forth in our prior opinion. We will include
them here for background information. (People v. Felix, supra, D066686.)
“On October 3, 2005, [appellant’s brother] Fabian [Felix] rented a
Dodge Magnum vehicle. (Undesignated date references are to the year 2005.)
2 To avoid confusion, we refer to Alfredo Felix by his first name because
other individuals is this opinion share Alfredo’s last name.
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The next day, Fabian, Alfredo and their cousin, Cristobal D’Arte, drove south
from Waterford to Hemet, California to visit Juan Molina who had asked
Fabian to bring down marijuana. Molina was married to Fabian’s and
Alfredo’s sister.
“Molina testified that on October 4, Fabian called him and said that he
was on the road on his way down to Hemet. In the early afternoon, Fabian,
Alfredo and D’Arte arrived at Molina’s apartment in the Dodge Magnum.
Fabian did not have any marijuana with him, but told Molina he was meeting
with someone to get it. The four men discussed a plan for getting the
marijuana. Fabian and Alfredo were going to meet with a person who had
marijuana and rob him. They expected the victim to have twenty pounds of
marijuana on him.
“Based on the plan, Fabian and Alfredo were going to meet with the
victim and convince him to get into their car with the marijuana. D’Arte and
Molina were supposed to wait for them at an apartment complex on Cawston
Avenue. Once Fabian, Alfredo and the victim were parked at the apartment
complex, the plan was for D’Arte and Molina to pull the victim out of the car
and fight with him while Fabian and Alfredo drove off with the marijuana.
During the discussion about the plan, Fabian and Alfredo each pulled out
.45 caliber handguns.
“That same day, when Fabian and Alfredo left Molina’s apartment,
Molina and D’Arte drove to the apartments on Cawston Avenue and parked.
After waiting for some time, Molina saw the Dodge Magnum arrive and park.
Molina and D’Arte approached the rear side of the Dodge.
“Molina saw Alfredo, who was seated in the rear passenger-side seat,
grab the victim in the front passenger seat around the neck and put a gun to
his head. Molina also saw Fabian, who was in the driver’s seat, turn toward
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the victim. Molina then heard a shot. The passenger door opened and the
victim fell out of the car. Alfredo then got into the front passenger seat and
D’Arte jumped into the back seat. As the Dodge backed up, Molina ran to his
car and returned to his apartment.
“Alfredo, Fabian and D’Arte arrived at Molina’s apartment
approximately five minutes after Molina. Alfredo and Fabian were both
upset about the shooting. Fabian left that day but Alfredo stayed the night
at Molina’s apartment.
“On the day of the shooting, several residents of the Cawston Avenue
apartments saw the Dodge at the apartment complex. Residents also saw
two men approach the car, heard a shot and then saw the victim fall out of
the parked car. They then saw one of the two men who had approached the
car get into it and the other man run away. Residents then observed the
Dodge speed out of the apartment complex driveway.
“Officers were dispatched to the location of the shooting at 4:41 p.m.
Officer Derek Maddox found the victim lying on his back in a flower bed. The
victim had died from a gunshot wound. If the victim had been in the front
passenger seat, his wound was consistent with being shot from close
proximity on the left side.
“Police arrested Fabian in July 2006 and prepared a wanted poster for
Alfredo. The poster included Alfredo’s picture, date of birth, and physical
characteristics. It also stated, ‘[Alfredo], along with his brother and cousin,
were involved in a 20 [pound] marijuana drug rip off with the victim of this
case. The victim was shot to death with a .45 caliber handgun during this
incident.’
“The Kern County Sheriff’s special operations group located Alfredo in
January 2011. When Deputy Raul Murrillo initially asked Alfredo his name,
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Alfredo identified himself as ‘Rafael.’ When asked again, Alfredo repeated
his name was ‘Rafael.’ When asked if his name was Alfredo, Alfredo
responded that it was not. Deputy Murrillo showed Alfredo the wanted
poster with Alfredo’s picture and asked Alfredo yet again if he was Alfredo
Felix. Alfredo looked at the poster, shook his head to suggest ‘no’ and then
put his head down. Police found no information connecting the name ‘Rafael’
with Alfredo.”
DISCUSSION
I
Legal Principles
Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) was
enacted 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.’ ” (People v. Gentile (2020) 10
Cal.5th 830, 842.)
Section 1170.95, subdivision (c) provides: “Within 60 days after service
of a petition that meets the requirements set forth in subdivision (b), the
prosecutor shall file and serve a response. The petitioner may file and serve
a reply within 30 days after the prosecutor’s response is served. These
deadlines shall be extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to determine
whether the petitioner has made a prima facie case for relief. If the
petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court declines to
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make an order to show cause, it shall provide a statement fully setting forth
its reasons for doing so.”
When a trial court reviews a petition for resentencing, the court first
determines if the petitioner has shown a prima facie case for relief under the
statute. If so, the court must issue an OSC and hold an evidentiary hearing
on the petition. (People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis).)
However, the court may deny the petition if the person is ineligible as a
matter of law. (People v. Drayton (2020) 47 Cal.App.5th 965, 980-981.) The
court may review the record of conviction, including any prior appellate
opinion, to determine if the petitioner’s allegations are rebutted by the
record. (Lewis, at p. 972.) However, the court may not engage in factfinding
and weighing credibility at the prima facie stage of petition review. (Drayton,
at pp. 979-980.)
The court in Lewis went on to explain the process of reviewing petitions
for resentencing under section 1170.95. The court said: “The record of
conviction will necessarily inform the trial court’s prima facie inquiry under
section 1170.95, allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at
p. 971.) “While the trial court may look at the record of conviction after the
appointment of counsel to determine whether a petitioner has made a prima
facie case for section 1170.95 relief, the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, ‘ “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.” ’ ” (Ibid.)
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“ ‘However, 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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “Appellate
opinions . . . are generally considered to be part of the record of conviction.”
(Id. at p. 972.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Ibid.) “In sum, the
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 [section 1170.95], subdivision (c).” (Ibid.)
II
Analysis
The question of how courts should use pre-Banks and Clark special
circumstances in reviewing resentencing petitions under section 1170.95 in
evaluating any prima facies showing of eligibility is before our Supreme
Court. Ultimately, our high court will provide direction to the courts. Until
then, we will follow our decision in Arias, supra, 66 Cal.App.5th 987, review
granted. There, we examined the same issues that are before us in this case.
We concluded that a resentencing petition could not be denied at the prima
facie stage of review based solely on a true finding on a pre-Banks and Clark
robbery murder special circumstance. We continue to believe the analysis of
the issues in Arias is correct and will apply it here.
On this record, the court could not find Alfredo, an aider and abettor, to
be a major participant in the crime while acting with reckless disregard for
human life without factfinding, which is not permitted at the prima facie
review stage of a petition for resentencing under section 1170.95 in light of
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Lewis, supra, 11 Cal.5th at p. 974. Accordingly, we find the court erred in
denying the petition without first issuing an OSC and conducting an
evidentiary hearing.
DISPOSITION
The order denying Alfredo’s petition for resentencing under section
1170.95 is reversed. The matter is remanded to the superior court with
directions to issue an OSC and conduct an evidentiary hearing as required by
statute. We express no opinion regarding the potential results of such
hearing.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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