Filed 10/19/22 P. v. Chavez CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083845
Plaintiff and Respondent,
(Super. Ct. No. SC076313A)
v.
BARBARA LYNN CHAVEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Erin
Doering, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.
INTRODUCTION
Petitioner Barbara Lynn Chavez petitioned the superior court, pursuant to former
section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on her conviction
for first degree murder. The superior court denied the petition at the prima facie stage on
the ground petitioner was convicted of first degree murder and the jury found true a
special circumstance allegation pursuant to section 190.2, subdivision (a)(17)(A). (See
§ 1172.6, subd. (c).)
On appeal, petitioner argues the denial of her petition at the prima facie stage was
erroneous because the special circumstance finding does not bar relief. We agree. We
therefore reverse the superior court’s order denying the petition and remand with
directions to issue an order to show cause.
PROCEDURAL HISTORY2
In 1999, an information was filed charging petitioner, along with codefendant
Regina Eason, with first degree murder (§ 187, subd. (a); count 1), burglary (§ 460,
subd. (b); count 2), attempted robbery (§§ 212.5, subd. (c), 664; count 3), and conspiracy
to commit robbery (§§ 182, subd. (a)(1), 212.5, subd. (c); count 4). As to count 1, the
information alleged robbery and burglary special circumstances (§ 190.2, subd.
(a)(17)(A), (G)). As to counts 1 through 3, the information also alleged a firearm
enhancement (§ 12022, subd. (a)(1)). A jury found petitioner guilty on all counts and
found all allegations true.3 On count 1, petitioner was sentenced to a term of life without
1 Undesignated statutory references are to the Penal Code. Former section
1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.
2 We dispense with a statement of facts, as the facts underlying the offenses are
not pertinent to the issues raised on appeal.
3 The jury found one of four overt acts alleged in support of the conspiracy to be
not true. The remaining overt acts were found true.
2.
the possibility of parole, plus one year for the firearm enhancement. Sentence on the
remaining counts was imposed and stayed.
Petitioner filed a section 1172.6 petition for resentencing on her murder conviction
on February 14, 2019.4 Counsel was appointed to represent petitioner. The petition was
fully briefed, with the prosecution arguing petitioner was ineligible for resentencing as a
major participant who acted with reckless indifference to human life.
On December 30, 2021, the court denied the petition without a hearing on the
following grounds: “[Petitioner] was convicted of first degree murder. In addition, the
jury found true the special circumstance that the murder was committed during the
commission of a robbery.”
This timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences
doctrine . . . 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); see § 189, subd. (e); accord, People v. Gentile (2020) 10 Cal.5th
830, 842.) Senate Bill No. 1437 also added former section 1170.95, now renumbered as
section 1172.6, which provides a procedure for persons convicted of felony murder to
4 In the petition, petitioner indicated Governor Edmund Gerald Brown, Jr., had
commuted her sentence on March 30, 2018, to a term of 25 years to life, and she had
been found suitable for parole on October 4, 2018. In responsive briefing, the People
confirmed that Governor Brown granted petitioner’s request for clemency and commuted
her sentence, and that she had been granted parole and was now out of custody.
3.
seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a); accord, Gentile, at
p. 853.)
Under section 1172.6, an offender seeking resentencing must first file a petition in
the sentencing court, and the sentencing court must determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c).)
If the sentencing court determines the petitioner has made such a showing, the court must
issue an order to show cause and hold a hearing to determine whether to vacate the
murder conviction. (§ 1172.6, subds. (c), (d)(1).) At this evidentiary hearing, “the
burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder . . . under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1172.6 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (People v. Lewis (2021) 11 Cal.5th 952, 972-974; see People v.
Watson (1956) 46 Cal.2d 818, 836.)
II. Analysis
Petitioner argues she made a prima facie claim for resentencing and the court erred
in relying on the special circumstance to deny her petition at the prima facie stage. The
People initially argued the petition was properly denied because the jury’s true finding on
the robbery-murder special circumstance established petitioner was a major participant in
the robbery and acted with reckless indifference to human life, disqualifying factors
pursuant to section 1172.6, subdivision (a)(3) and section 189, subdivision (e).
However, while this appeal was pending, our Supreme Court issued its opinion in
People v. Strong (2022) 13 Cal.5th 698 (Strong). Therein, the high court held that a
special circumstance finding entered pursuant to section 190.2, subdivision (a)(17) prior
to the court’s decisions in People v. Clark (2016) 63 Cal.4th 522 and People v. Banks
4.
(2015) 61 Cal.4th 788 did not preclude a section 1172.6 petitioner from making a prima
facie showing of eligibility for relief.5 (Strong, at p. 703.)
In light of Strong, we advised the parties of our intention to reverse and remand
this matter with directions to issue an order to show cause. We afforded the parties an
opportunity to file objections to this proposed disposition. The parties responded that
they had no objections to the proposed disposition.
Strong is dispositive of this case. The special circumstance findings were made
before Banks and Clark and therefore are not preclusive on prima facie review of the
petition under section 1172.6. (Strong, supra, 13 Cal.5th at p. 703.) The petition was
facially sufficient and alleged the essential facts necessary for relief under section 1172.6.
Because the People have presented no other basis to deny the petition at the prima facie
stage, the order denying the petition must be reversed and the matter remanded with
directions to issue an order to show cause and, to the extent necessary, to conduct an
evidentiary hearing under subdivision (d) of section 1172.6. We express no opinion on
the ultimate resolution of the petition.
DISPOSITION
The December 30, 2021 order denying the petition is reversed and the matter
remanded with directions to issue an order to show cause and, to the extent necessary, to
hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
5Banks and Clark “substantially clarified the law” regarding “what it means to be
a major participant and . . . to act with reckless indifference to human life.” (Strong,
supra, 13 Cal.5th at pp. 706-707.)
5.