Filed 6/20/22 P. v. Reyes CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060475
v. (Super. Ct. No. 09NF1710)
EDWARD JAMES REYES et al. OPINION
Defendants and Appellants.
Appeal from a postjudgment orders of the Superior Court of Orange
County, Cheri T. Pham, Judge. Affirmed in part, reversed in part, and remanded with
directions.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant Edward James Reyes.
Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant Mariano Martinez.
Rob Bonta, Attorney General, Charles C. Ragland, Senior Assistant
Attorney General, A. Natasha Cortina and Robin Urbanski, Deputy Attorneys General,
for Plaintiff and Respondent.
We appointed counsel to represent Edward James Reyes and Mariano
Martinez on appeal. Each counsel filed a brief that set forth the facts of the case.
Counsel did not argue against their clients but advised the court they found no issues to
argue on their behalf.
Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.)
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the
court with its independent review, counsel provided the court with information as to an
issue that might arguably support an appeal. Counsel for Reyes presented the following
issues: (1) Did the trial court prejudicially err in not appointing counsel for Reyes;
(2) Does the enactment of Senate Bill No. 775 (SB 775) require this matter be remanded;
and (3) Did the court err by summarily denying Reyes’s petition for resentencing under
Penal Code section 1170.95 (all further statutory references are to the Penal Code, unless
otherwise indicated).
Counsel for Martinez presented the following issues: (1) Do the
ameliorative benefits of section 1170.95 apply to Martinez’s conviction; (2) Did the trial
court err in not appointing counsel in this case; and (3) Did the court err by summarily
denying the section 1170.95 petition on the ground that the statute does not apply to
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attempted murder. Martinez’s counsel filed a supplemental opening brief in which he
indicated the passage of SB 775 made attempted murder eligible for relief under section
1170.95 and argued the court erred by denying Martinez’s petition on the basis of his
attempted murder conviction.
Reyes filed a supplemental brief in which he stated his disagreement with
counsel’s Wende brief. He states, “My attorney [overlooked] the fact that I accepted a
plea deal. [Section] 1170.95 includes plea deals.” He argues that although he took a plea
deal, if he had gone to trial the jury could have been instructed on vicarious liability.
Martinez filed a supplemental brief entitled “Mariano Martinez v. Martin
Gamboa Warden.” In his supplemental brief, Martinez makes four claims: (1) He was
erroneously denied appointment of counsel; (2) Section 1170.95 should be applied to
attempted murder; (3) He was erroneously denied a hearing because he made a prima
facie showing; and (4) The law does not allow malice to be imputed to a person based
solely on participation in a crime.
Subsequent to the court receiving the briefs for both defendants and
counsel, both counsel and the Attorney General were invited to file supplemental briefs
on the effect of SB 775 on these appeals. All parties filed supplemental briefs in
response to the court’s invitation. Martinez’s counsel also filed a reply brief. We will
discuss contentions made in this round of briefing anon.
FACTS
In 2009, Chicanos Kicking Ass (CKA) and Family of Latin Kings
(FOLKS) were rival street gangs. Reyes, moniker “Menace,” Martinez, moniker
“Stalker,” and Freddie Guerrero, moniker “Cartoon” were members of CKA. On May
20, 2009, Reyes, Martinez, and Guerrero picked up Jose Linares in Martinez’s car and
asked him if he wanted “‘to go to FOLKS.’” Linares understood that to mean they were
going to “jump” a FOLKS gang member. Linares told them he was willing and that he
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had a gun stashed or hidden. Guerrero said he wanted to use the gun, but Reyes said he
did, so Linares gave the gun, wrapped in a blue or black bandanna, to Reyes. Martinez
was driving the car, Guerrero was in the front passenger seat, Reyes was in the right rear
seat, and Linares was in the left rear seat.
Later, they saw Ricardo Cordova, who looked to them to be a FOLKS gang
member. Linares said, “There is one.” Guerrero asked Cordova, “‘Where are you
from?’” Cordova replied, “‘I don’t bang.’” Guerrero and Reyes got out of the car with
“wrappings” on their faces and began running after Cordova. Guerrero yelled, “CKA.”
Reyes had the gun in his hand when he got out of the car. One of the people who got out
of the car fired three or four shots from a revolver. No one could identify the shooter, but
Linares testified that when Reyes got back in the car Reyes still had the gun in his hand.
Linares also testified he and Reyes later hid the gun in a drainpipe and Reyes told him,
“‘I think I got him.’” Linares was charged with attempted murder as a result of the
shooting. He testified at Reyes’s trial in return for a promise that he would receive a
sentence of 11 years and four months for his involvement in the crime.
A passerby drove Cordova to the hospital. Cordova was shot in the left
occiput, where the base of the skull meets the neck, behind and below the left ear. The
bullet lodged next to Cordova’s left jaw. The bullet blocked the left internal jugular vein,
but the artery was not damaged, so the decision was made not to operate to remove the
bullet.
Sergeant Henry Fantes found a “dark rag” near the Anaheim intersection of
Neighbors Avenue and Onondaga Avenue after a witness pointed it out to him. The
parties stipulated the rag was tested for DNA and that Reyes was excluded as a major
contributor, but that Amos Lopez, whose DNA sample was obtained through the CAL–
DNA data bank, was a major contributor. Lopez, moniker “Stranger,” was a CKA gang
member.
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On June 17, 2009, Anaheim police officers, including Sergeant Michael
Haggerty, stopped the car used in the May 20 shooting. Martinez was driving the car and
Reyes, Lopez, and another male were passengers in the car. Inside the car, officers found
a length of pipe between the front seats, a souvenir wooden bat, and a claw hammer in
places where they would be accessible to be used as weapons. Officers arrested Reyes.
Haggerty went to Reyes’s apartment in Buena Park to tell his parents he had been
arrested, and with the mother’s consent, he searched Reyes’s bedroom. Haggerty found
letters and song lyrics that made reference to “Menace” shooting “fools” on the spot. In
addition, there were written references to “Forks,” which was a derogatory term for the
FOLKS gang.
In September 2009 Reyes and Lopez were housed in juvenile hall. A
deputy probation officer, Indalesia Bravo, placed Reyes and Lopez in the same room and
set up a microphone so they could be surreptitiously taped. Bravo taped their
conversation and listened from the next room. Lopez was heard to tell Reyes the police
had told him that Lopez’s DNA was found, “[F]or, like a rag right there by where that
fool got shot.” After some innocuous discussion, Reyes told Lopez, “‘Cause I had took
off my shirt . . . white, a white, a white shirt across my face.’” When Lopez asked Reyes
about a bandana, Reyes responded, “[W]e left it in the car, fool. The, the one that we
wrapped it with, right? Yeah, well we came with it ‘cause Twin had it right here, he
pulled out the strap and gave it to me. There was no bandana.’” Finally, Reyes told
Lopez, in apparent response to a question, “Nah, I threw it over there . . . .” Lopez asked,
“Twin?” and Reyes answered, “Yeah[,] he came . . . with it already like packing it.”
“‘Strap’” is a common street term for a gun.
An amended information jointly charged Reyes and Martinez with
conspiracy to commit murder in violation of section 182, subdivision (a)(1) (count 1),
attempted premeditated and deliberate murder in violation of sections 664, subdivision
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(a), and 187, subdivision (a) (count 2), and being an active participant in a criminal street
gang in violation of section 186.22, subdivision (a) (count 3). As to count 2, the
information alleged Reyes personally discharged a firearm causing great bodily injury
within the meaning of section 12022.53, subdivision (d), personally discharged a firearm
within the meaning of section 12022.53, subdivision (c), and he personally used a firearm
within the meaning of section 12022.5, subdivision (a). The information also alleged
Reyes committed counts 1 and 2 for the benefit of a criminal street gang within the
meaning of section 186.22, subdivision (b)(1). Prior to trial, the trial court granted the
prosecution’s motion to sever the cases of the two defendants.
A jury found Reyes guilty of attempted premeditated murder (count 2), and
of being an active member of a criminal street gang (count 3). The jury also found it true
Reyes had committed count 2 for the benefit of a criminal street gang within the meaning
of section 186.22, subdivision (b)(1). The jury was unable to reach a verdict on count 1,
and as to the allegations made as to count 2 pursuant to section 12022.53, subdivisions
(c) and (d). The court declared a mistrial as to that count and those allegations.
Martinez pleaded guilty to attempted murder (§§ 664, subd. (a), 187, subd.
(a)), two counts of street terrorism (§ 186.22, subd. (a)), and possession of a deadly
weapon (§ 12020, subd. (a)(1)), and admitted he was a gang member who vicariously
discharged a firearm (§ 12022.53, subds. (c), (e)(1)). Martinez admitted that “on May 20,
2009, [he] unlawfully and with the intent to kill, attempted to kill John Doe while [he]
was an active participant in Chicanos Kicking Ass (‘CKA’), a criminal street gang, with
the specific intent to benefit, promote . . . in criminal conduct by CKA. During the
commission of this attempted murder as an active participant of CKA with the intent to
benefit CKA, [he] vicariously discharged a firearm.” He further admitted, “On June 17,
[section] 12020[, subdivision] (a)(1), in association with and for the benefit of CKA, [he]
possessed a deadly weapon . . . .”
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In May 2021, Reyes filed a petition for resentencing under section 1170.95
and stated he was “entitled to be resentenced pursuant to [SB 775].” The prosecution
filed an opposition, asserting Senate Bill No. 1437 (SB 1437) was unconstitutional and an
attempted murder conviction was not eligible for resentencing. The prosecution further
argued Reyes was ineligible for resentencing because his attempted murder conviction is
not based on a theory of natural and probable consequences; the jury was not instructed
on such theory. Instead, liability was premised on Reyes being a direct perpetrator or
aiding and abetting the direct perpetrator.
In June 2021, Martinez filed an in propria persona, handwritten petition
for resentencing pursuant to section 1170.95 and attached a declaration under penalty of
perjury. In his declaration, Martinez stated, in part, “I was not the shooter[.] I did not aid
and abet the crime, I was only the driver[.] I did not know someone was going to get
killed, I was not a major participant in the crime[.]”
On June 28, 2021, the trial court summarily denied Reyes’s petition, stating
in a minute order the following: “The petition does not set forth a prima [facie] case for
relief under the statute. A review of court records indicates defendant is not eligible for
relief under the statute because the defendant does not stand convicted of murder or
defendant’s murder conviction(s) is not based on felony-murder or on a natural and
probable consequences theory of vicarious liability for aiders and abettors.”
The same day, the trial court summarily denied the petition by minute
order. The court indicated the following: “The petition does not set forth a prima [facie]
case for relief under the statute. A review of court records indicates defendant is not
eligible for relief under the statute because the defendant does not stand convicted of
murder or defendant’s murder conviction(s) is not based on felony-murder or on a natural
and probable consequences theory of vicarious liability for aiders and abettors.
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SECTION 1170.95 SUPPLEMENTAL BRIEFING
In his supplemental brief, Reyes’s counsel asserts SB 775 provides that
“defendants convicted of attempted murder under the natural and probable consequences
doctrine, manslaughter, or murder under an implied malice theory where malice is
imputed to a person based solely on that person’s participation in a crime may be eligible
for relief.” He again argues it was error for the court to deny Reyes appointment of
counsel and to summarily deny his petition.
In his supplemental brief, Martinez’s counsel notes the amended section
1170.95 has added the crime of attempted murder to the crimes eligible for vacatur. He
indicates in Martinez’s petition, “he averred in a declaration that he was not the shooter
and acted solely as a getaway driver in the underlying crime.” He then argues that under
the amendments contained in sections 188 and 189, Martinez would now be eligible for
the third stage of proceedings under section 1170.95 where the prosecution must prove
beyond a reasonable doubt that he could be convicted under a now legally acceptable
theory of guilt. He further argues, under the recent decision by the California Supreme
Court in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the failure of the court to appoint
counsel after the filing of a facially sufficient petition is error requiring reversal. He
requests this court reverses the judgment and order the trial court to appoint counsel and
issue an order to show cause.
The Attorney General agrees section 1170.95, subdivision (c), “requires the
court to appoint counsel for all properly pleaded petitions, and then conduct a prima facie
analysis, with briefing by the parties, as to the petitioner’s eligibility before issuing an
order to show cause.” (§ 1170.95, subd. (c).) He also agrees SB 775 extends the section
1170.95 petition process to the offense of attempted murder, but he argues “remand is not
required in this case because the record conclusively establishes that the both appellants
stand convicted of attempted murder based on still-valid theories of liability.”
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In a supplemental reply brief, Martinez notes he has now filed a declaration
along with his petition in which he states facts contradicting the facts he offered the court
as a basis of his plea. Relying on People v. Langi (2022) 73 Cal.App.5th 972, he argues
the dispute he has created in the facts requires this court to reverse and instruction the
trial court to find a prima facie case and move to stage two where the record of
conviction contains evidence of ineligibility.
DISCUSSION
SB 1437 amended sections 188 and 189, effective January 1, 2019, to
eliminate natural and probable consequences liability for murder, and to limit the scope
of the felony murder rule. (Lewis, supra, 11 Cal.5th at pp. 957, 959.) Under sections 188
and 189, as amended, murder liability can no longer be imposed on a person who was not
the actual killer, who did not act with the intent to kill, or who was not a major participant
in the underlying felony who acted with reckless indifference to human life. (Lewis,
supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1170.95 which, as originally
enacted, set forth a procedure whereby a “person convicted of felony murder or murder
under a natural and probable consequences theory” could petition for resentencing relief.
(§ 1170.95, subd. (a).)
SB 775, effective January 1, 2022, amended section 1170.95, subdivision
(a), to expand the individuals entitled to petition for resentencing. (Stats. 2021, ch. 551,
§ 1, subd. (a).) Subdivision (a) now expressly permits individuals convicted of attempted
murder or manslaughter under a natural and probable consequences theory to file a
petition for resentencing relief.
A section 1170.95 petition is required to include: “(A) A declaration by the
petitioner that the petitioner is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case number and year of the
petitioner’s conviction. [And] [¶] (C) Whether the petitioner requests the appointment of
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counsel.” (§ 1170.95, subd. (b)(1).) “[U]pon the filing of a facially sufficient petition,”
the statute “requir[es] that counsel be appointed.” (Lewis, supra, 11 Cal.5th at p. 970.)
“[T]hen the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a
prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p.
960.)
Although the trial court may not engage in judicial factfinding or make
credibility decisions prior to issuing an order to show cause, under Lewis, supra,
11 Cal.5th at page 971, “[t]he 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.” The Lewis court also
held a trial court’s failure to appoint counsel to represent a petitioner when assessing
whether he or she has made a prima facie showing of entitlement to relief pursuant to
section 1170.95, subdivision (c), is state law error only, reviewable for prejudice under
the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra,
11 Cal.5th at pp. 957-958, 973-974.) Specifically, “a petitioner ‘whose petition is denied
before an order to show cause issues has the burden of showing “it is reasonably probable
that if [he or she] had been afforded assistance of counsel his [or her] petition would not
have been summarily denied without an evidentiary hearing.”’ [Citation.]” (Id. at
p. 974.) We will address each defendant separately.
I. Reyes
The Attorney General asserts remand is not required in this case because
the record conclusively establishes Reyes and Martinez stand convicted of attempted
murder based on still-valid theories of liability. Yet, he concedes that “if the petitioner is
not necessarily ineligible as a matter of law and an order to show cause issues, then the
trial court may hold an evidentiary hearing. (§ 1170.95, subd. (d).)” He argues that
because Reyes’s jury was not instructed on the natural and probable consequences
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doctrine and the jury specifically found that he committed the attempted murder with
premeditation and deliberation Reyes is not entitled to relief. It is his contention the
record affirmatively establishes that neither Reyes nor Martinez was convicted of
attempted murder under a natural and probable consequences or felony murder theory.
Because attempted murders committed with the intent to kill and premeditation are still
valid theories of liability post-SB 1437 and SB 775, Reyes is ineligible as a matter of law
on the finding of premeditation and deliberation.
We agree there was a finding of premeditation and deliberation, but we
cannot overlook the fact that although Reyes was charged with the personal use of a
firearm, and the jury did not make a true finding on this enhancement. This is contrary to
the assumption Reyes was the actual shooter and, therefore, ineligible as a matter of law.
We are not persuaded that the finding of premeditation and deliberation standing alone
disqualifies Reyes as a matter of law. (See People v. Eynon (2021) 68 Cal.App.5th 967,
979.)
We are also not persuaded that the trial court took a close look at the facts
of this case. In denying the petition, the court references murder and then states the
petition does not set forth a prima facie case for relief under the statute. There is no
reference to the crimes of attempted murder of which these defendants were actually
convicted. With the benefit of counsel, Reyes can present his best arguments for relief
and the court can decide after a hearing whether Reyes is entitled to that relief.
II. Martinez
The Attorney General argues Martinez expressly admitted that he harbored
the intent to kill when he committed premeditated attempted murder. He notes, as the
factual basis for his guilty plea, Martinez stated on his plea form, “‘On May 20, 2009, I
did unlawfully and with the intent to kill, attempted to kill John Doe while I was an active
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participant in Chicanos Kicking Ass (CKA), a criminal street gang, with the specific
intent to benefit, promote, further, and assist in criminal conduct by CKA.’”
There is no contention Martinez was the actual shooter. The record
demonstrates Martinez was the driver and never left the car. Admittedly, the record of
conviction establishes Martinez with his compatriots picked up Linares in Martinez’s car
and asked Linares if he wanted “‘to go to FOLKS.’” Linares understood that to mean
they were going to “jump” a FOLKS gang member. Linares told the car’s occupants he
was willing and that he had a gun stashed or hidden. Guerrero and Reyes had a dispute
as to who would use the gun with Reyes prevailing. When Guerrero and Reyes left with
the gun, Martinez remained in the car waiting. One of the people who got out of the car
fired three or four shots from a revolver and when Reyes got back in the car, he still had
the gun in his hand. Martinez then drove away with his compatriots and the gun.
The evidence would appear to demonstrate Martinez directly aided and
abetted the shooter in committing the offense by facilitating his movement to the
intended target and the shooter’s getaway. His conversations with Reyes in juvenile hall
further suggest Martinez’s direct involvement. Lastly, Martinez personally admitted to
the court that he “unlawfully and with the intent to kill, attempted to kill John Doe.”
These facts tend to show Martinez was a major participant in the attempted
murder and the factual basis he offered at the time of his plea indicate he possessed the
intent to kill. Yet, his declaration under penalty of perjury filed with his petition suggests
a lack of intent and a different level of involvement. This conflict is best resolved in the
trial court after counsel has been appointed. The court then has the ability to hold an
evidentiary hearing.
With respect to the court’s error in not appointing counsel, on this record
we cannot find it is not reasonably probable that even with the appointment of counsel
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and further briefing, Martinez would have obtained a different result with his section
1170.95 petition. (Lewis, supra, 11 Cal.5th at p. 975.)
DISPOSITION
The postjudgment order denying Reyes’s petition to vacate his attempted
murder conviction and for resentencing is reversed. The matter is remanded to the
superior court with directions to issue an order to show cause (§ 1170.95, subd. (c)), and
hold a hearing to determine whether to vacate Reyes’s attempted murder conviction and
recall his sentence and resentence him (§ 1170.95, subd. (d)).
The postjudgment order denying Martinez’s petition to vacate his attempted
murder conviction and for resentencing is reversed. The matter is remanded to the
superior court with directions to issue an order to show cause (§ 1170.95, subd. (c)), and
hold a hearing to determine whether to vacate Martinez’s attempted murder conviction
and recall his sentence and resentence him (§ 1170.95, subd. (d)). In all other respects
the postjudgment orders are affirmed as to both Reyes and Martinez.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
SANCHEZ, J.
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