Filed 6/30/22 P. v. Cardenas CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A161694
v. (Sonoma County Super. Ct.
ROGELIO JAVIER CARDENAS, No. SCR 32760-4)
Defendant and Appellant.
Defendant Rogelio Javier Cardenas appeals from the trial court’s denial
of his Penal Code1 section 1170.95 petition to vacate his conviction for first
degree murder and for resentencing. Because the jury’s special gang
circumstance finding under section 190.2, subdivision (a)(22) establishes as a
matter of law that Cardenas is ineligible for relief under section 1170.95, we
conclude the trial court correctly denied the petition without issuing an order
to show cause. We therefore affirm.
I. BACKGROUND
In 2005, following a jury trial, Cardenas and three other defendants
were convicted of first degree murder. The jury found true a special
circumstance allegation that Cardenas and his codefendants intentionally
1 All statutory references are to the Penal Code unless otherwise noted.
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killed the victim while they were active participants in a criminal street gang
and that the murder was carried out to further the activities of the criminal
street gang (§ 190.2, subd. (a)(22)). At trial, the prosecution advanced three
theories of liability for murder: (1) that each defendant was the actual
perpetrator; (2) that each defendant was a direct aider and abettor; and
(3) that each defendant was an indirect aider and abettor of one of five
“target crimes” under the natural and probable consequences doctrine.2
The trial court sentenced Cardenas to 25 years to life in prison for first
degree murder and 10 years for the gang enhancement (§ 190.2,
subd. (a)(22)). In an unpublished 2009 opinion, this court struck the 10-year
enhancement because it was an error to impose it where a 15-year limitation
upon parole eligibility under section 186.22, subdivision (b)(5) should have
applied instead. (People v. Amante (Sept. 3, 2009, A113655).) Cardenas’s
conviction for first degree murder was otherwise affirmed.
On January 28, 2019, Cardenas filed a petition under section 1170.95
to vacate his murder conviction and for resentencing. The prosecution
opposed the petition and argued that Cardenas was ineligible for relief as a
matter of law based on the jury’s gang special circumstance finding.
On December 2, 2020, the trial court issued a written order denying the
petition.3 In its order, the court stated that the “special circumstance finding
alone renders [Cardenas] ineligible for [section 1170.95] relief as a matter of
law.” The court reasoned that “[i]n finding the special circumstance to be
2 The five “target crimes” were for (1) breach of peace; (2) assault;
(3) battery; (4) assault with a deadly weapon; and (5) assault by means of
force likely to produce great bodily injury.
3 In this same order, the trial court also denied the petitions for relief
under section 1170.95 of two of the three other defendants found guilty of
first degree murder following the 2005 trial.
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true, the jury necessarily determined that each of these petitioners
‘intentionally killed’ the victim and that each of these petitioners acted with
the requisite ‘malice’ required for an aiding and abetting theory of murder.”
The court further found that Cardenas was ineligible for relief because this
court’s 2009 opinion on direct appeal “demonstrates as a matter of law that
each of the petitioners could be found guilty under a valid theory of murder.”
II. DISCUSSION
A. Senate Bill 1437
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 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 ).)” (People v. Gentile (2020) 10 Cal.5th
830, 846–847 (Gentile).)
To achieve this purpose, Senate Bill 1437 added three provisions to the
Penal Code: “First, to amend the felony-murder rule, Senate Bill 1437 added
section 189, subdivision (e): ‘A participant in the perpetration or attempted
perpetration of [qualifying felonies] in which a death occurs is liable for
murder only if one of the following is proven: [¶] (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, as described in subdivision (d) of
Section 190.2.’ . . .
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“Second, to amend the natural and probable consequences doctrine,
Senate Bill 1437 added section 188, subdivision (a)(3) . . . : ‘Except [for
felony-murder liability] as stated in subdivision (e) of Section 189, in order to
be convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based solely on his or
her participation in a crime.’
“Third, Senate Bill 1437 added section 1170.95 to provide a procedure
for those convicted of felony murder or murder under the natural and
probable consequences doctrine to seek relief under the two ameliorative
provisions above.” (Gentile, supra, 10 Cal.5th at pp. 842–843.)
B. Section 1170.95 Petition
“A person convicted of felony murder or murder under a 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”
may file a petition seeking to vacate the conviction “and to be resentenced on
any remaining counts when all of the following conditions apply: [¶]
(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
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, or attempted murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of
murder, attempted murder, or manslaughter following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could have been convicted of
murder or attempted murder. [¶] (3) The petitioner could not presently be
convicted of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
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Once the threshold requirements are satisfied under section 1170.95,
subdivisions (a) and (b), the prosecutor files a response and the petitioner
may submit a reply. Then, the trial 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
make an order to show cause, it shall provide a statement fully setting forth
its reasons for doing so.” (§ 1170.95, subd. (c).)
If the trial court issues an order to show cause, it must hold an
evidentiary hearing to determine whether the petitioner is entitled to relief.
(§ 1170.95, subd. (d).) At the hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended by the
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (d)(3).)
C. Prima Facie Showing
Since we are asked to determine whether Cardenas is precluded from
relief under section 1170.95 as a matter of law, our review is de novo. (See
People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18,
S264978.)
As explained in People v. Duchine (2021) 60 Cal.App.5th 798, 815,
under section 1170.95, subdivision (c), “the prima facie showing the
defendant must make is that he did not, in fact, act or harbor the mental
state required, for a murder conviction under current law.” Indeed, “[i]f a
defendant asserts he lacked the requisite intent or did not act in a manner
that would make him liable under still-valid murder theories, unless the
record of conviction refutes those assertions as a matter of law, the defendant
has met his prima facie burden.” (Duchine, at p. 813.)
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The court may look at the record of conviction to determine whether a
prima facie showing has been made, as the record “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. This is consistent with the statute’s overall purpose: to ensure
that murder culpability is commensurate with a person’s actions, while also
ensuring that clearly meritless petitions can be efficiently addressed as part
of a single-step prima facie review process. (See Stats. 2018, ch. 1015, § 1,
subd. (f ).)” (People v. Lewis (2021) 11 Cal.5th 952, 971.)
Finally, as this court held, “section 1170.95 does not allow relitigation
of factual questions that were settled by a prior jury . . . .” (People v. Secrease
(2021) 63 Cal.App.5th 231, 247, review granted June 30, 2021, S268862.
(Secrease).) At the prima facie stage, “the ultimate question is not a
backward-looking inquiry into whether a past conviction finds support in
substantial evidence.” (Id. at p. 246.)
D. Whether the Trial Court Erred in Engaging in Factfinding
In Lewis, our Supreme Court held that although appellate opinions are
generally part of the record of conviction, “the probative value of an appellate
opinion is case-specific” and that in reviewing the record, “a trial court should
not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (People v. Lewis, supra, 11 Cal.5th at p. 972, quoting People v.
Drayton (2020) 47 Cal.App.5th 965, 980.)
Section 1170.95, subdivision (d)(3), as amended by Senate Bill No. 775
(2021–2022 Reg. Sess.) clarified the holding in Lewis and provides that at the
hearing to determine whether a petitioner is entitled to relief (after a prima
facie showing is made), the court may consider “the procedural history of the
case recited in any prior appellate opinion.” However, “[a] finding that there
is substantial evidence to support a conviction for murder, attempted murder,
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or manslaughter is insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
Cardenas contends that the trial court erred in engaging in factfinding
when it stated, as a secondary reason for denying Cardenas’s petition, that
there was sufficient evidence to support all three theories of murder based on
this court’s 2009 opinion. We agree that whether Cardenas could be found
guilty under a valid theory of murder is not the proper issue to be addressed
at the prima facie stage of a section 1170.95 proceeding. As this court held,
“the ultimate question is not a backward-looking inquiry into whether a past
conviction finds support in substantial evidence.” (Secrease, supra,
63 Cal.App.5th at p. 246, review granted.) Rather, it is whether there is a
prima facie case “that [the defendant] did not, in fact, act or harbor the
mental state required, for a murder conviction under current law.” (People v.
Duchine, supra, 60 Cal.App.5th at p. 815.)
However, the trial court stated in its order as the first reason for
denying Cardenas’s petition that the gang special circumstance finding alone
rendered him ineligible for relief under section 1170.95 as a matter of law.
The court held that “[i]n finding the special circumstance true, the jury
necessarily determined that each of these petitioners [referring to the three
defendants who were convicted of this murder] ‘intentionally killed’ the
victim and that each of these petitioners acted with the requisite ‘malice’
required for an aiding and abetting theory of murder.” We agree and thus
conclude it made no difference that the court also adopted a sufficiency of the
evidence analysis in denying the petition.
E. Cardenas Is Ineligible for Relief as a Matter of Law Based on the
Jury’s Special Circumstance Finding
As discussed above, the jury’s special circumstance finding renders
Cardenas ineligible for relief as a matter of law. At trial, the jury was
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instructed that in order to return a true finding under section 190.2,
subdivision (a)(22), the prosecution had to prove the following special
circumstance beyond a reasonable doubt: “If you find a defendant in this case
guilty of murder of the first degree, you must then determine if the following
special circumstance is true or not true: Penal Code Section 190.2(a)(22):
Intentional Killing by Active Street Gang Members.” This finding states that
defendant “intentionally killed the victim while the defendant was an active
participant in a criminal street gang, as defined in subdivision (f ) of Section
186.22, and the murder was carried out to further the activities of the
criminal street gang.” (§ 190.2, subd. (a)(22).)
The jury was further instructed that if it did not find that Cardenas
was the actual killer, or if it was unable to decide whether he was the actual
killer or an aider and abettor, it “cannot find the special circumstance to be
true as to that defendant unless [it is] satisfied beyond a reasonable doubt
that [Cardenas] with the intent to kill aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted any actor in the commission of the
murder in the first degree.” In its verdict, the jury found true the special
circumstance as to each defendant, including Cardenas.
The above finding necessarily means that the jury found Cardenas to
have been either the actual perpetrator or a direct aider and abettor to the
killing, both of which require malice aforethought and remain valid theories
of murder under the current law. (§ 188, subd. (a)(3); Gentile, supra,
10 Cal.5th at p. 848.) We find no merit to Cardenas’s argument that because
the prosecutor also proposed the natural and probable consequences theory to
the jury, he was likely found guilty under this theory and therefore did not
harbor the requisite malice for murder. Nothing in the record supports this
claim. The prosecution was permitted to advance different theories of
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murder at trial and did so when it asked the jury to consider whether
Cardenas was the direct perpetrator, direct aider and abettor, or indirect
aider and abettor of a target crime under the natural and probable
consequences doctrine. There was nothing improper about this strategic
approach.
Cardenas relies heavily on People v. Brown (2016) 247 Cal.App.4th 211
(Brown) and People v. Offley (2020) 48 Cal.App.5th 588, 599 (Offley) to
support his position. These cases are distinguishable. In Brown, the issue
there was whether error under People v. Chiu (2014) 59 Cal.4th 155, in the
giving of a natural and probable consequences instruction, was prejudicial.
The appellate court found it was prejudicial on the record presented. (Brown,
supra, 247 Cal.App.4th at pp. 226–227.)
Granted, this case and Brown are broadly similar, at least at a general
level, because in Brown, as here, there was a special circumstance verdict
rendered under section 190.2, subdivision (a)(22). But the similarity ends
there. We see a number of material points of distinction, starting with the
fact that Brown predates Senate Bill 1437 and involves a harmless error
issue that is fundamentally different than the section 1170.95, subdivision (c)
prima facie case issue we are dealing with here. As is always the case with
harmless error, the analysis employed in Brown required the sort of
“backward-looking inquiry” we rejected in Secrease. (Secrease, supra,
63 Cal.App.5th at p. 246, review granted.)
Another striking distinction is that Brown involved a uniquely bizarre
set of circumstances in the taking of the verdict.4 In addition, as the trial
4 As described by the appellate panel in Brown, the circumstances were
as follows: “Late in the afternoon on January 2, 2014, the jury informed the
court it reached a verdict, but that it preferred the court take the verdict the
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court in this case pointed out, Brown “was a ‘close case’ where the evidence
against defendant was ‘not overwhelming’ ” on a record where “the fact that
the jury’s other (somewhat conflicting) firearm enhancement findings
indicated it had rejected an ‘actual perpetrator’ theory” and “the jury [had]
asked a question about the natural and probable consequences theory shortly
before rendering its verdict . . . .” Together with the irregularities in the
taking of the verdict, all of this explained why the Chiu error in Brown was
not harmless beyond a reasonable doubt.
There are no comparable circumstances suggesting that the jury here
relied on a natural and probable consequences aiding and abetting theory.
We disagree with Cardenas that the jury’s question to the trial court
concerning the interplay of the first degree murder instruction and the
natural and probable consequences instruction (when considered along with
the court’s answer to that question), suggest to the contrary. In fact, the
next day at 1:30 p.m. The bailiff obtained the verdict forms from the jury and
gave them to the court to review ‘for completeness.’ The jurors were excused
and ordered to return at 1:30 p.m. the next day. In reviewing the forms, the
court observed the not guilty form for first degree murder had been signed
and dated, but the signature and date had been crossed out and the words
‘withdrawl [sic]’ and ‘void’ had been written in large letters diagonally across
the form. Without consulting with counsel, or even making counsel aware of
the situation, the court sent the jury a note when it reconvened on January 3,
2014, at 1:30 p.m. The note stated, ‘The “Not Guilty” form for Murder in the
First Degree had “withdrawn void” handwritten across the form. The Court
has taken out that form and replaced it with a clean copy.’ The note
continued, apparently because the foreperson did not sign either of the
verdict forms for count two, ‘As to Count 2, under tab # 2, please date and
sign the appropriate form for the verdict you have reached or indicate to the
court by a question that you are unable to reach a verdict on Count 2 and are
therefore deadlocked.’ ” (Brown, supra, 247 Cal.App.4th at pp. 227–228.)
None of this was revealed to counsel until after the jury was excused.
(Brown, supra, 247 Cal.App.4th at p. 228.)
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appellate panel in Brown, in acknowledging how unusual the circumstances
were, pointed out that, on a different record, it might have decided the Chiu
error there was harmless. In making this point, the record the Brown court
described is a good description of the record we have here: “It is possible in a
given case,” the Brown court explained, “to conclude the giving of an
erroneous natural and probable consequences instruction was harmless
beyond a reasonable doubt when the jury finds the defendant guilty of first
degree murder and finds the gang special circumstance true, because the
special circumstance required finding the defendant intentionally killed. In
such a situation, it might be concluded the jury necessarily rejected the
natural and probable consequences theory of aider and abettor liability and
instead found the defendant was either the actual killer or aided and abetted
the actual killer while sharing the killer’s intent to kill.” (Brown, supra,
247 Cal.App.4th at p. 226, italics in original.)
As for Offley, the jury there convicted the defendant of second degree
murder and found true the firearm enhancement that “Offley personally and
intentionally discharged a firearm, proximately causing great bodily injury
and death to the victim. (§ 12022.53, subd. (d).)” (Offley, supra,
48 Cal.App.5th at p. 593.) The trial court denied Offley’s section 1170.95
petition on that basis. (Offley, at p. 594.) The Second District reversed,
finding that the firearm enhancement “does not establish as a matter of law
that a defendant acted with malice aforethought.” (Id. at p. 597.) Rather, the
enhancement “provides that the defendant must have intended to discharge a
firearm, but does not refer to an ‘intent to achieve an additional consequence.’
[Citation.] It is thus a general intent enhancement, and does not require the
prosecution to prove that the defendant harbored a particular mental state as
to the victim’s injury or death.” (Id. at p. 598.) Since the jury was instructed
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on the natural and probable consequences doctrine, the court “[could not] rule
out the possibility that the jury relied on the natural and probable
consequences doctrine in convicting Offley.” (Id. at p. 599.)
Here, the jury specifically found beyond a reasonable doubt, through
the gang special circumstance finding, that Cardenas intentionally killed the
victim. Unlike the firearm enhancement in Offley, the enhancement here
required Cardenas to act with an intent to kill and therefore establishes that
Cardenas acted with malice aforethought. This in turn necessarily means
that the jury rejected the natural and probable consequences doctrine in
convicting Cardenas of first degree murder.
III. DISPOSITION
The trial court’s order denying Cardenas’s section 1170.95 petition is
affirmed.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
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