Filed 8/23/22 P. v. Zhuk CA3
Opinion following rehearing
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093995
Plaintiff and Respondent, (Super. Ct. No. 00F02479)
v. OPINION AFTER
GRANT OF REHEARING
DANIIL V. ZHUK,
Defendant and Appellant.
While defendant Daniil V. Zhuk was serving a sentence of 25 years to life in
prison for first degree murder with true special circumstances findings, the Legislature
enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). (Stats.
2018, ch. 1015, §§ 1-4.). This bill amended the law governing murder liability under the
felony murder and natural and probable consequences theories and provided a new
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procedure under Penal Code section 1170.951 for eligible defendants to petition for recall
and resentencing.2
We issued an opinion on July 22, 2022, affirming the trial court’s denial of
defendant’s petition for resentencing. We agreed with the trial court that defendant was
precluded from making a prima facie showing of eligibility for relief under section
1170.95 because a jury had found true two special circumstance allegations under section
190.2, subdivision (a)(17), although those findings were made before our Supreme Court
clarified the standard for making such findings in People v. Banks (2015) 61 Cal.4th 788
and People v. Clark (2016) 63 Cal.4th 522.
After we issued our opinion, affirming the judgment, our Supreme Court issued
People v. Strong (Aug. 8, 2022, S266606) ___ Cal.5th ___ [2022 Cal. Lexis 4563]
(Strong), which concluded that special circumstances findings made before Banks and
Clark do not preclude a defendant from making a prima facie case for resentencing under
section 1170.95, even if the trial evidence would have been sufficient to support the
findings under Banks and Clark. (Strong, at p. *12.)
Defendant filed a petition for rehearing. After requesting an answer from the
Attorney General, who agreed with defendant that we should grant rehearing and remand
the case, we granted defendant’s petition. On rehearing, we agree with the parties that we
must vacate the trial court’s order and remand the matter for further proceedings not
inconsistent with Strong.
1 Further undesignated statutory references are to the Penal Code.
2 Defendant filed the petition in 2020. Effective June 30, 2022, the Legislature
renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were
no substantive changes to the statute. For purposes of clarity and conformity with the
petition, we will continue to refer to the statute as section 1170.95 throughout the
opinion.
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FACTS AND PROCEEDINGS
Factual and Procedural Background
The facts underlying defendant’s crimes as relevant here, set forth in our
unpublished opinion People v. Zhuk (July 18, 2008, No. C047365) (nonpub. opn.), as
modified on denial of rehearing (Aug. 15, 2008) (Zhuk I) affirming defendant’s
convictions, were as follows:
In 2000, Cindy Chung drove her BMW to an autobody shop owned by her father.
Defendant, then 17 years old, codefendant Mikhael Vlasov, and 14-year-old Peter P.
began following Chung; defendant carried a loaded handgun and said he knew people
who would pay money for a BMW or Mercedes. Defendant discussed ordering drivers
out of the desired cars at gunpoint. Defendant followed Chung to the autobody shop,
parked nearby, and gave the gun to Vlasov. He instructed Vlasov to run up to the driver
of the car, stick the gun in her face, and take away the car. Peter P. heard Vlasov check
the gun’s magazine and watched him leave the car. (Zhuk I, supra, C047365.)
Chung went into the shop’s office and returned about 10 minutes later. Vlasov
returned to defendant’s car and told defendant he could not find the BMW. Defendant
told Vlasov to go check again, and Vlasov walked away toward the shop. Vlasov walked
to where Chung had parked. Vlasov fired two shots, and Chung’s father saw her car
crash into a fence. Vlasov ran to defendant’s car, got in, and said he had shot out the
front windshield of the BMW. After the incident, defendant drove around surface streets.
He said he would dispose of his car by getting into an accident; he rear-ended a car, and
Peter P. and Vlasov went to the hospital. Chung died at the scene of the shooting. (Zhuk
I, supra, C047365.)
As to the charges regarding Chung, the jury found defendant guilty of murder,
attempted carjacking, and attempted robbery. (§§ 187, subd. (a), 211, 215, 664, subd.
(a).) As to the murder count, the jury found true the allegation that a principal in the
commission of the offense was armed with a firearm (§ 12022, subd. (a)(1)), and the
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special circumstance allegations that defendant was engaged in the commission of an
attempted robbery and an attempted carjacking when the murder occurred (§ 190.2, subd.
(a)(17)). The trial court sentenced defendant to life without the possibility of parole
(LWOP) on the murder count, plus one year for the firearm enhancement. (Zhuk I, supra,
C047365.)
Defendant appealed his conviction on several grounds, including on the basis that
insufficient evidence supported the jury’s finding that he was a major participant as
required to sustain the special circumstance findings, and this court affirmed the
judgment in July 2008. (Zhuk I, supra, C047365.) In October 2017, pursuant to Miller v.
Alabama (2015) 567 U.S. 460 (Miller) and its progeny, defendant’s LWOP sentence was
reduced to 25 years to life, plus one year for the firearm enhancement, plus three years
four months for remaining counts.
Defendant’s Petition
In May 2020, defendant filed a petition for resentencing pursuant to section
1170.95. Defendant asserted that: (1) the information filed against him allowed the
prosecutor to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine; (2) he was convicted of first degree murder pursuant to
the felony-murder rule; and (3) he could not now be convicted of murder because of
changes made to sections 188 and 189, effective January 1, 2019. He further argued that,
although the jury had found true two special circumstance allegations, he was not
precluded from relief because the true findings were made prior to the decisions in Banks
and Clark, which clarified the meaning of the special circumstance statute. Defendant
added the information filed in this case as an exhibit.
The prosecution filed a motion to dismiss the petition. It argued defendant
murdered with malice aforethought, rendering him ineligible for relief, and his petition
failed to meet the statutory burden to make a prima facie showing of eligibility. The
People conceded that defendant was entitled to a “Banks/Clark hearing” but maintained
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the evidence would nonetheless show he was a major participant acting with reckless
indifference to human life at the time of the murder.
In reply to the People’s motion to dismiss his petition, defendant asked the trial
court to issue an order to show cause and set a hearing to determine whether his conduct
involved reckless indifference to human life under Banks/Clark per the People’s
concession that a hearing on that issue was warranted, contended the jury had never made
a finding of malice, and asserted he had in fact set forth a prima facie case.
On September 2, 2020, the trial court denied the petition without a hearing and
without prejudice should defendant obtain postconviction relief in a habeas corpus
proceeding from the special circumstance findings. The court concluded that defendant
first needed to seek collateral relief in a habeas proceeding to challenge the special
circumstance findings under Banks and Clark because section 1170.95 was not “the
proper forum” for such a determination, and thus the trial court did not have jurisdiction
to allow for a challenge to the validity of the special circumstance findings. In the
alternative, the court concluded that defendant had failed to set forth a prima facie case
for relief based on the evidence summarized by this court in defendant’s direct appeal.
On September 15, 2020, defendant filed a motion for reconsideration, which the
prosecution opposed. Defendant alleged, inter alia, that the trial court had decided his
petition on grounds not raised by either party, namely on the basis that he had not
obtained habeas relief as a prerequisite for resentencing under section 1170.95, and he
argued he was no longer in custody pursuant to the special circumstance findings and
thus he could not obtain habeas corpus relief as the trial court suggested.
The trial court denied defendant’s motion for reconsideration. The court rejected
defendant’s argument that he was no longer in custody pursuant to the felony-murder
special circumstances pursuant to his sentence reduction under Miller, supra, 567 U.S.
460. The court followed People v. Murillo (2020) 54 Cal.App.5th 160, abrogated by
Strong, supra, ___ Cal.5th at p. ___ [2022 Cal. Lexis 4563 at pp. *15, *17]), which held
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that the proper venue for challenging a felony-murder special circumstance finding under
Banks and Clark is by a petition for a writ of habeas corpus, not a section 1170.95
petition, and also that a court may deny a section 1170.95 petition if it determines that the
record of conviction shows as a matter of law that the special circumstance finding is
valid even under Banks and Clark. The court stated it did not have jurisdiction to
entertain a postjudgment challenge to the validity of the special circumstances via a
section 1170.95 petition, and that, regardless, as “an alternate ground” for denying the
petition, it had analyzed defendant’s special circumstance findings under Banks and
Clark and had found the findings were still sufficiently supported by the evidence.
Defendant timely filed a notice of appeal. The case was fully briefed in May 2022
and assigned to this panel on May 31, 2022. The parties waived argument on July 5,
2022, and the case was deemed submitted on July 8, 2022. We issued our opinion on
July 22, 2022. Our Supreme Court issued Strong on August 8, 2022, and defendant
petitioned this court for rehearing on the same day. We ordered the Attorney General to
answer defendant’s rehearing petition, which he did on August 12, 2022.
DISCUSSION
I
Legal Background
Senate Bill No. 1437 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The legislation accomplished this by
amending sections 188 and 189 and adding section 1170.95.
Section 188, which defines malice, now provides in part: “Except 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
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on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) 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.”
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated 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 or murder under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial . . . .
[¶] (3) The petitioner could not be convicted of first or second degree murder because of
changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
As relevant here, once a complete petition is filed, “[t]he 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 . . . . If the petitioner makes a
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prima facie showing that he or she is entitled to relief, the court shall issue an order to
show cause.” (§ 1170.95, subd. (c).)
II
Prima Facie Showing
Defendant contests the trial court’s conclusion that the appropriate avenue to
challenge the jury’s special circumstances findings is through a petition for habeas
corpus, rather than a section 1170.95 petition. He contends that the jury’s true findings
on the felony-murder special circumstance allegations do not preclude relief because the
findings were made before the Supreme Court clarified the definitions of “major
participant” and “reckless indifference to human life” in Banks and Clark.
After we rejected defendant’s claims in our recent opinion, our Supreme Court
issued Strong, which concluded: “Findings issued by a jury before Banks and Clark do
not preclude a defendant from making out a prima facie case for relief under Senate Bill
[No.] 1437. This is true even if the trial evidence would have been sufficient to support
the findings under Banks and Clark.” (Strong, supra, ___ Cal.5th at p. ___ [2022 Cal.
Lexis 4563 at p. *12].) Here, the trial court concluded that the jury’s pre-Banks and
Clark findings precluded defendant from making a prima facie case, and, alternatively,
that sufficient evidence supported the findings under Banks and Clark. Because the trial
court’s conclusions do not survive Strong, we will vacate the trial court’s order and
remand for further proceedings not inconsistent with Strong.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is vacated, and the cause is
remanded with directions to conduct further proceedings not inconsistent with Strong.
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Earl, J.
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