Filed 1/27/22 P. v. Chavez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081126
Plaintiff and Respondent,
(Stanislaus Super. Ct. No. 1040531)
v.
RAMON SALVADOR CHAVEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Robert B.
Westbrook, Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Franson, J.
INTRODUCTION
Around 10:00 p.m. on August 31, 2000, appellant Ramon Salvador Chavez
entered Corona Liquors on Crows Landing Road in Modesto and shot and killed Gurmit
Singh Bahia, the proprietor. He pleaded guilty to first degree premediated murder and
admitted the felony-murder special circumstance, and the People agreed not to pursue the
death penalty. He was sentenced to life in prison without the possibility of parole for
special circumstance murder, plus 37 years for other offenses and enhancements.
Appellant filed a petition for relief, in pro. per., pursuant to Penal Code section
1170.95,1 and alleged his murder conviction had to be vacated because he was
improperly convicted based on the felony-murder rule or the natural and probable
consequences doctrine. The superior court appointed counsel for appellant, found his
petition stated a prima facie case for relief, issued an order to show cause, set the matter
for an evidentiary hearing, and the parties filed additional briefing. After the hearing, the
court denied the petition because it found appellant was the actual killer and ineligible for
relief.
In this appeal from the court’s order, his appellate counsel has filed a brief that
summarizes the facts with citations to the record, raises no issues, and asks this court to
independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant
has also filed a supplemental brief. We affirm.
FACTS2
Ovana Robles (Robles), appellant’s former girlfriend, testified she was living with
appellant at a motel in Modesto in 2000. Shortly before the murder, appellant and Robles
1
All further statutory citations are to the Penal Code unless otherwise indicated.
The following facts are from the certified copy of the reporter’s transcript of the
2
grand jury hearing that returned the indictment against appellant. As will be explained
below, after the court issued the order to show cause, the People filed the complete
certified copy of the reporter’s transcript from the grand jury hearing as an exhibit in
support of its opposition. At the hearing, appellant did not present any evidence and did
2.
pleaded guilty to committing a robbery in Turlock. On the day of the murder, they were
in their motel room, and she saw defendant sanding and shaving a handgun. Robles
testified something was wrong with the gun and the clip was missing.
Robles testified that later that night, they went to eat at a taco truck that was
parked in front of Corona Liquors. Appellant told Robles he needed money and wanted
to do a “lick,” which was slang for a robbery; he indicated Corona Liquors was the target.
Robles testified they argued because she refused to get involved and told him that he
should not commit anymore robberies. She reminded appellant that they had just pleaded
guilty to robbery and were supposed to turn themselves in. Appellant said he was going
to do it anyway. Robles got angry and left; she knew he was going to go forward with
the robbery.
A minor was working at the taco truck that was parked in front of Corona Liquors
that night. The minor saw a man and woman there, later identified as appellant and
Robles. They ordered food from the truck, sat at a nearby table, and talked. The minor
testified that when they stopped talking, Robles left, and appellant put something over his
head and his face. The minor saw appellant walk into the liquor store and pull out a gun.
Appellant moved back and forth near the cash register with the gun. The minor heard
one gunshot. Appellant ran out of the store, in the same direction that Robles went when
she left the area.
Appellant’s fingerprint was found on the table next to the taco truck.
Detective Mark Copeland, the investigating officer, obtained the liquor store’s
security videotape. The video showed appellant enter the store and yell at Mr. Bahia,
“ ‘Give me the fucking money.’ ” Appellant waived a gun and fired one shot at Mr.
Bahia, who was standing near the cash register. Mr. Bahia gestured toward appellant and
made statements in Punjabi that were later translated as: “ ‘You killed me. You killed
not object to the transcript. The court relied on the transcript when it denied relief on the
merits.
3.
me. The police are coming. The police are coming.’ ” Appellant hit the victim over the
head, grabbed money from the cash register, and left. Mr. Bahia triggered the silent
alarm before he collapsed. When officers arrived, they found Mr. Bahia on the floor; he
died at the scene. One nine-millimeter cartridge case was found near his body.
Robles testified that when appellant returned to their motel room that night, he had
about $100 in cash. Appellant was nervous, pacing, and started crying. Appellant said,
“ ‘I don’t know what happened. The gun went off and I shot him.’ ” Appellant said that
he fired the gun once and “shot the guy” at the liquor store.
The pathologist testified Mr. Bahia died from a bullet wound that entered his right
lateral back, went through the bottom of his right lung and liver, hit the aorta, grazed the
spine, went through the bottom of the left lung, and exited through his left chest. The
direction of the bullet was from right to left, back to front, and slightly downward. The
bullet wound caused internal bleeding, and the victim bled to death. The victim had a
second bullet wound through the back of his left arm, likely caused by the first bullet
after it passed through his body.
The victim also had a laceration on the top of his head that dislodged a bone chip
from his skull. It was consistent with a blow from a small blunt object, such as the butt
of a gun. There was blood around the laceration, which meant the victim was still alive
when he was hit on the head.
Guillermo Marin (Marin) testified that he sold appellant a nine-millimeter
handgun for $200 sometime in August 2000, prior to the murder. Appellant paid Marin
$160 and still owed $40, but Marin let appellant take the gun. The gun did not have a
clip, but Marin gave appellant a Smith and Wesson clip as a replacement. However, it
did not work on the gun. Marin testified that without the clip, a person had to load the
gun with a single bullet each time he wanted to fire it.
4.
Marin saw appellant and Robles a few days after the murder, and asked appellant
for the $40 he owed him for the gun. Appellant said he used the gun at a liquor store
robbery, and “ ‘I shot that guy with that gun.’ ”
Marin testified he later saw appellant when they were both in jail. Appellant
appeared shaken and worried about robbery and homicide charges. Marin asked what
happened to the gun that he used to shoot the guy at the liquor store. Appellant said it
was gone and would not be found.
PROCEDURAL BACKGROUND
On September 11, 2000, appellant was arrested on an outstanding warrant. On
October 13, 2000, appellant was arrested in jail for the murder of Mr. Bahia. On October
17, 2000, a complaint was filed that charged appellant with the murder.
The Grand Jury Indictment
On April 2, 2002, the grand jury heard evidence about the crimes allegedly
committed by appellant, as set forth above.
On April 4, 2002, the grand jury indictment was filed in the Superior Court of
Stanislaus County alleging appellant committed count 1, murder of Mr. Bahia on August
31, 2000 (§ 187, subd. (a)), with the special circumstance that he committed the murder
while engaged in the commission or attempted commission of a robbery (§ 190.2,
subd. (a)(17)); enhancements for being a principal and personally discharging a firearm
causing death (§ 12022.53, subd. (d)) and committing the offense while on bail
(§ 12022.1); and a prior strike conviction.
The indictment also alleged appellant committed count 2, robbery of Shirley
Denny on June 28, 2000 (§ 211), with an enhancement for personal use of a firearm
(§ 12022.53, subd. (b)); and count 3, robbery of Aziz Ahmed on April 23, 2000, with an
enhancement for intentionally and personally discharging a firearm (§ 12022.53,
subd. (c)).
5.
On October 22, 2002, the court denied appellant’s section 995 motion to dismiss
the indictment.3
On December 26, 2002, the court declared a doubt as to appellant’s competency
pursuant to section 1368. The court suspended criminal proceedings and appointed an
expert to examine appellant.
Plea Hearing
On March 21, 2003, the court reviewed the expert’s report, found appellant was
competent, and reinstated criminal proceedings. Thereafter, defense counsel advised the
court that appellant was going to change his plea pursuant to an agreement with the
prosecution to waive a penalty trial for the death penalty.
Appellant pleaded guilty to count 1, murder of Mr. Bahia, and admitted the special
circumstance, the personal discharge and on-bail enhancements, and the prior strike
conviction. He also pleaded guilty to count 2, robbery of Ms. Denny, and admitted the
personal use enhancement. The parties agreed the prosecution would not pursue the
death penalty and agreed to the sentence of life without the possibility of parole for
count 1, special circumstance murder. The court granted the prosecution’s motion to
dismiss count 3 and another pending case.
The parties stipulated to a factual basis for the plea. The prosecutor stated that as
to count 1, murder, if the case went to trial, the evidence would show that on August 31,
2000, appellant “entered Corona’s Liquors on South Ninth Street in Stanislaus County
with a [nine-millimeter] loaded handgun with the intent to rob, and shortly after entering
he did shoot Gurmit Singh Bahia in the torso of his body in the course of that robbery and
3 In addition to the homicide evidence, the grand jury heard testimony from
Mr. Ahmed, the owner of a market in Modesto that appellant robbed on April 23, 2000.
Appellant used a shotgun to threaten and intimidate him, took cash from the register, and
fired a shot into the ceiling as he left. Ms. Denny, a clerk at a Modesto minimart,
testified that appellant robbed the store on June 28, 2000, threatened her with a shotgun,
she feared for her life, and he took cash from the register.
6.
that directly from the injury that wound Mr. Bahia died within minutes of that shooting.”
As to count 2, the prosecutor stated the evidence would show that on July 5, 2000,
appellant “entered a store occupied by Shirley Denny … with a handgun and did rob that
store of the cash out of the register.”
Sentencing Hearing
On May 8, 2003, this court denied appellant’s petition for writ of mandate to
dismiss the indictment (case No. F041830).
On May 16, 2003, the court sentenced appellant to life without the possibility of
parole plus 37 years.
Appellant’s Petitions
This court denied appellant’s petitions for writ of mandate in April 2009 (case
No. F057149), December 2009 (case No. F058921), October 2013 (case No. F067782)
and March 2014 (cases Nos. F069001 & F069030).
SENATE BILL Nos. 1437 & 775
The instant appeal involves appellant’s petition for resentencing that he filed
pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.; Senate Bill 1437), that was
effective on January 1, 2019, and amended “ ‘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.’ [Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 959, italics added
(Lewis).)
“Substantively, Senate Bill 1437 accomplishes this by amending section 188,
which defines malice, and section 189, which defines the degrees of murder, and as now
amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th
719, 723, italics added; People v. Gentile (2020) 10 Cal.5th 830, 842.)
7.
“In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief. [Citation.]” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to section 188 or 189 made effective January 1, 2019.’
[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ [Citation.] If a petition fails to comply with subdivision (b)(1),
‘the court may deny the petition without prejudice to the filing of another petition.’
[Citation.]” (Lewis, supra, 11 Cal.5th at pp. 959–960.)
“Where the petition complies with [section 1170.95,] subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines
that a prima facie showing for relief has been made, the trial court issues an order to show
cause, and then 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 in the same manner as if the petitioner had not … previously been sentenced,
provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.]
‘The prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage,
‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
8.
the petitioner is ineligible for resentencing.’ [Citation.]” (Lewis, supra, 11 Cal.5th at
p. 960.)
Lewis
In Lewis, the court interpreted the provisions of section 1170.95 and held that
petitioners “are entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957.)
Lewis held that after appointing counsel, the trial court could rely on the record of
conviction to determine whether the prima facie showing is made “to distinguish petitions
with potential merit from those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at
p. 971.) The record of conviction includes a prior appellate opinion, although it will be
case-specific. (Id. at p. 972.) The prima facie finding under section 1170.95, subdivision
(c) is limited, and the court must accept the petitioner’s factual allegations as true and
cannot reject the allegations on credibility grounds without conducting an evidentiary
hearing. (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘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.” ’ [Citation.]” (Ibid.)
Senate Bill No. 775
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,
effective on January 1, 2022. (2020-2021 Reg. Sess.; Stats. 2021, ch. 551, §1 (Senate
Bill 775).) As a result of the amendments, section 1170.95 clarified that “persons
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
9.
consequences doctrine, or manslaughter,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1170.95, subd. (a), italics added.)
The amendments also codified the holding in Lewis that a petitioner has the right
to appointment of counsel, if requested, prior to the court making the prima facie finding:
“Upon receiving a petition in which the information required by this subdivision is set
forth …, if the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner.” (§ 1170.95, subd. (b)(3).) After appointment of counsel, the
parties shall have the opportunity to submit briefing, and “the court shall hold a hearing
to determine whether the petitioner has made a prima facie case for relief.” (§ 1170.95,
subd. (c).)
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 make an order
to show cause, it shall provide a statement fully setting forth its reasons for doing so.
(§ 1170.95, subd. (c).)
Senate Bill 775 also amended section 1170.95 to clarify that after the court issues
the order to show cause and conducts a hearing, the prosecution has the burden to prove
beyond a reasonable doubt that petitioner is guilty of murder or attempted murder under
the amended versions of sections 188 and 189. (§ 1170.95, subd. (d)(3).)
“The admission of evidence in the hearing shall be governed by the
Evidence Code, except that the court may consider evidence previously
admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially
noticed. The court may also consider the procedural history of the case
recited in any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of Section
872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The
prosecutor and the petitioner may also offer new or additional evidence to
meet their respective burdens. A finding that there is substantial evidence
to support a conviction for murder … is insufficient to prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.”
10.
(§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2, eff.
Jan. 1, 2022.)
APPELLANT’S SECTION 1170.95 PETITION FOR RELIEF
On or about February 2, 2019, the Superior Court of Stanislaus County marked as
“received” a petition from appellant for resentencing on his murder conviction pursuant
to section 1170.95. Appellant filled out a preprinted form, checked boxes, and filed
supporting authorities, in pro. per., to allege the prosecution proceeded on theories of
felony murder or the natural and probable consequences doctrine; he pleaded guilty to
first or second degree murder in lieu of going to trial because he believed he would have
been convicted pursuant to the felony-murder rule or the natural and probable
consequences doctrine; and he could not now be convicted of first or second degree
murder based on Senate Bill 1437’s amendments to section 188 and 189.
Appellant did not check the box to declare that he was not the “actual killer.”
However, he checked the box that stated: “There has been a prior determination by a
court or jury that [appellant] was not a major participant and/or did not act with reckless
indifference to human life … under section 190.2(d). Therefore, I am entitled to be
resentenced pursuant to §1170.95(d)(2).”4
4 Section 190.2, subdivision (d) states: “Notwithstanding subdivision (c), every
person, not the actual killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state prison for life without
the possibility of parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.” (Italics added.)
Appellant was not charged with, and did not admit, the section 190.2,
subdivision (d) special circumstance. Instead, he admitted the special circumstance in
section 190.2, subdivision (a)(17)(A), that the murder was committed while he was
engaged in the commission or attempted commission of a robbery and admitted the
enhancement that he personally discharged a firearm causing death (§ 12022.53,
subd. (d)).
11.
The People’s Opposition
On March 5, 2019, the People filed the initial opposition, attached a partial
transcript of the grand jury hearing as an exhibit, and argued appellant failed to set forth a
prima facie case for relief because he personally discharged the firearm and was the
actual killer. They further argued that there had never been a prior determination that
appellant was not a major participant in the murder and did not act with reckless
indifference.
The Court’s Prima Facie Finding
On April 9, 2019, the superior court stated appellant’s section 1170.95 petition
was “received” but not “filed” with the court, even though it was served on both the
prosecutor and public defender. The court ordered appellant’s petition filed on that day.
The court found appellant stated a prima facie case for relief and appointed the
public defender to represent him. The court ordered the district attorney to serve the
opposition on the public defender and set a briefing schedule for the public defender to
file a reply.
Appellant’s Reply Brief
On August 14, 2019, appellant, represented by the public defender, filed a reply
brief to the People’s previously filed opposition. Appellant argued he made a prima facie
showing that he was entitled to relief pursuant to section 1170.95, and the court could not
conclude otherwise without making improper factual and credibility findings. Appellant
further argued he was not the actual killer, he was convicted under the felony-murder
rule, and he was entitled to an evidentiary hearing. Appellant did not file any exhibits in
support of his motion.
Order to Show Cause
On September 5, 2019, the court issued an order to show case and found appellant
stated a prima facie case for relief, noted the facts were disputed, and set an evidentiary
12.
hearing. On September 13, 2009, the court again appointed the public defender to
continue representing appellant at further proceedings.
The People’s Further Opposition
On February 3, 2020, the People filed further opposition to appellant’s petition,
supported by the complete certified transcript of the grand jury proceedings, as
summarized above. The People’s factual statement was based on the transcript and
argued the evidence showed appellant was the actual killer and ineligible for relief
pursuant to section 189, subdivision (e) and section 1170.95.5
The Court’s Denial of the Petition
On February 13, 2020, the court held the scheduled evidentiary hearing on the
petition. The prosecutor and defense counsel were present. Defense counsel did not
move to introduce any evidence and did not object to the prosecution’s introduction of
the grand jury transcript. The court stated:
“Given the evidence provided by the People, specifically the grand jury
transcript, the Court had previously held that a prima fascia [sic] case had
been made by [appellant], but it could be because he filed a rather late
petition. [¶] In any event, my tentative was that based on what I read in the
pleadings, [appellant] is not eligible for vacating the sentence or vacating
his conviction and resentencing him.”
The prosecutor agreed that appellant was ineligible “because he’s the actual
killer,” and asked the court to reconsider its earlier ruling that appellant had established a
prima facie case. Defense counsel replied: “I can’t argue that he’s not the actual killer,”
but was not sure that the court could procedurally reverse its prior prima facie finding.
5 Section 189, subdivision (e)(1) states that a participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a), in which a death occurs, is
liable for murder if “[t]he person was the actual killer.”
13.
The court did not reverse its prior finding, but again held appellant was the actual killer
and ineligible for relief.6
On April 29, 2020, appellant filed a notice of appeal.
DISCUSSION
As noted above, appellant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on July 15, 2020, we invited
appellant to submit additional briefing.
Appellant’s Supplemental Brief
On August 21, 2020, appellant filed a supplemental brief with this court, and
asserted Senate Bill 1437 and section 1170.95 were constitutional. The superior court
explained that it did not address the constitutional issues raised by the People because it
denied appellant’s petition on the merits. The court properly denied appellant’s petition
for relief because it is undisputed that he was the actual killer who fatally shot the victim.
(§ 189, subd. (e)(1).)
Appellant’s supplemental brief raises additional allegations that are refuted by the
record of this case. He asserts the superior court denied his section 1170.95 motion “at
the first stage of prima facie review.” To the contrary, the court appointed counsel to
represent appellant, found a prima facie case, issued an order to show cause, received
additional briefs, and held a hearing on the matter. Appellant did not introduce any
evidence, and the court denied relief on the merits. Appellant next asserts it was possible
“the sentencing Judge relied on the natural and probable consequences doctrine in
convicting Petitioner.” The court did not find appellant guilty of murder. He was
6The People’s opposition to appellant’s petition also asserted Senate Bill 1437
was unconstitutional. Appellant disagreed in his reply brief. The court declined to reach
the constitutional issue since it denied relief on the merits.
14.
indicted by a grand jury, pleaded guilty to first degree murder, and admitted the personal
discharge enhancement and the special circumstance.
Appellant asserts there was no evidence the murder was committed for a criminal
street gang, and the section 12022.53 firearm enhancement only applied if the crime was
committed for the benefit of a gang. Appellant was not alleged to have committed, and
did not admit, any gang offenses or enhancements in this case. Appellant next argues
there was no evidence that he “played a direct role in killing the victim.” It is undisputed
that appellant was the actual killer and fatally shot the victim, and there is no evidence
that anyone else was present in the market.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The court’s order of October 2, 2019, denying appellant’s petition for
resentencing, is affirmed.
15.