Filed 3/9/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304838
(Super. Ct. No. CR31011)
Plaintiff and Respondent, (Ventura County)
v.
JOSE ARREGUIN,
Defendant and Appellant.
Jose Arreguin appeals an order denying his petition for
resentencing pursuant to former Penal Code section 1170.95
(renumbered section 1172.6 without substantive change).1 We
reverse the order and remand for an evidentiary hearing
pursuant to section 1172.6. (People v. Strong (2022) 13 Cal.5th
698, 717-718 [true finding on a felony-murder special
circumstance allegation rendered prior to People v. Clark (2016)
63 Cal.4th 522 and People v. Banks (2015) 61 Cal.4th 788 does
1 All statutory references are to the Penal Code.
not preclude a petitioner from showing eligibility for section
1172.6 relief].)
We are sympathetic to the views expressed by our colleague
Justice Yegan in his well-reasoned concurring opinion. Strong,
however, does not appear to permit a harmless error application.
FACTUAL AND PROCEDURAL HISTORY
Arreguin’s resentencing petition concerned his 1993
conviction of first degree murder (count 1) and attempted robbery
(count 2), with findings of a special circumstance murder
committed during an attempted robbery and a principal armed
with a firearm. (§§ 187, subd. (a), 189, 664, 211, 190.2, subd.
(a)(17)(A), 12022, subd. (a)(1).) The trial court sentenced
Arreguin for the murder conviction to life without the possibility
of parole, plus one year for the firearm enhancement. Arreguin
appealed. We rejected arguments of instructional error and
insufficiency of the evidence and affirmed. (People v. Arreguin
(Dec. 12, 1994, B077312) [nonpub. opn.].)
On September 20, 2019, Arreguin filed a section 1172.6
petition for resentencing alleging that his murder conviction
rested upon the felony murder or the natural and probable
consequences doctrines. The trial court appointed counsel for
Arreguin and permitted the parties to file written arguments
regarding resentencing. Following briefing, the court denied the
petition. In a thorough and thoughtful ruling, the court decided
that Arreguin was ineligible for resentencing as a major
participant in the crime who acted with reckless indifference to
human life. (§ 189, subd. (e)(3).) The court did not issue an order
to show cause or hold an evidentiary hearing prior to ruling.
2
Summary of Trial Evidence
On December 1, 1992, landlord Richard Schell was seated
in his parked truck in Port Hueneme with the day’s rent
collections in cash and money orders. Gilbert Martinez
approached the driver’s side window holding a .45 caliber
handgun and tapped on the window. David Soto then
approached the closed passenger side window. Arreguin stood
closely behind Martinez holding Martinez’s jacket. George Pena
sat behind the wheel of a getaway vehicle. The four men had
followed Schell to the location after abandoning an earlier effort
to rob him following his rent collection from Pena’s sister.
Soto then struck and broke the vehicle window. Schell
started the truck in an effort to escape. Martinez made a
statement, then shot Schell in the heart, killing him.
Immediately preceding the fatal shot, Arreguin exhorted, “Shoot
‘im, shoot ‘im.” The men then fled. Later that evening, Arreguin
admitted to Pena’s uncle that he urged Martinez to shoot Schell.
At trial, Arreguin claimed he was merely a passenger in the
getaway vehicle who was unaware that the other men were
planning a robbery or possessed a firearm. He also denied
making the statement, “Shoot ‘im, shoot ‘im,” to Pena’s uncle.
Arreguin appeals the resentencing order and has submitted
supplemental briefing discussing People v. Strong, supra, 13
Cal.5th 698.
DISCUSSION
Arreguin argues that the trial court erred by denying his
resentencing petition because he demonstrated prima facie
eligibility for relief (issuance of an order to show cause and an
evidentiary hearing) pursuant to section 1172.6. He points out
that his felony murder special circumstance conviction does not
3
necessarily render him ineligible for relief. (People v. Strong,
supra, 13 Cal.5th 698 at p. 720 [special circumstance finding
prior to People v. Banks, supra, 61 Cal.4th 788, and People v.
Clark, supra, 63 Cal.4th 522 does not warrant summary denial of
a section 1172.6 petition, instead, the matter must proceed to an
evidentiary hearing].)
Section 1172.6 authorizes a defendant “convicted of felony
murder or murder under the natural and probable consequences
doctrine” to challenge his murder conviction if, as a threshold
matter, he makes a “prima facie showing” of entitlement to relief.
(§ 1172.6, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, he “could not presently be convicted of
murder” under the amendments to the murder statutes that
became effective on January 1, 2019. (Id. subd. (a)(3).) These
statutes, even as amended, still authorize a murder conviction,
however, based on murder committed by someone else in the
course of a jointly committed felony as long as the defendant “was
a major participant in the underlying felony and acted with
reckless indifference to human life.” (§ 189, subd. (e)(3).)
People v. Strong, supra, 13 Cal.5th 698, is controlling.
Strong concluded that “[f]indings issued by a jury before Banks
and Clark” are not preclusive and “do not preclude a defendant
from making out a prima facie case for relief.” (Id. at pp. 710,
716-717.) Strong reasoned that Banks and Clark “substantially
clarified” and narrowed the terms “major participant” and
“reckless indifference.” (Id. at p. 721.) Thus, the Banks and
Clark holdings represent a significant change warranting
reexamination of earlier litigated issues. (Id. at p. 717.)
Moreover, Strong held that it is inappropriate for any court to
evaluate whether substantial evidence supports the jury’s pre-
4
Banks and pre-Clark finding if the evidence is viewed through
the narrowed Banks and Clark prisms. (Id. at pp. 719-720.) In
sum, Strong held that a pre-Banks and pre-Clark special
circumstance finding does not warrant summary denial of a
section 1172.6 petition. Instead, the matter must proceed to an
evidentiary hearing. (Id. at p. 720.)
Here, Arreguin’s special circumstance finding was made
prior to Banks and Clark. Arreguin is entitled to an evidentiary
hearing. However the trial court may rule after an evidentiary
hearing, we hope our Supreme Court will offer guidance on
whether requests for section 1172.6 evidentiary hearings in
felony murder convictions prior to Banks and Clark are ever
subject to a harmless error analysis.
DISPOSITION
The order denying the petition for resentencing is reversed,
and the matter is remanded to the trial court to appoint counsel,
issue an order to show cause, and conduct an evidentiary hearing
pursuant to section 1172.6.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
I concur:
BALTODANO, J.
5
YEGAN, J., Concurring.
I concur under compulsion of People v. Strong (2022) 13
Cal.5th 698 (Strong). The Court of Appeal is bound to apply the
holdings of the California Supreme Court. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 457.) This is a
reversal only because we view Strong, supra, in isolation. I do
not believe we should view this precedent in isolation. As
Presiding Justice Gardner would say, I reserve my right First
Amendment right to express disagreement. (People v. Musante
(l980) 102 Cal.App.3d 156, 159, conc. opn. of Gardner, P.J. [“I
fully recognize that under the doctrine of stare decisis, I must
follow the rulings of the Supreme Court, and if that court wishes
to jump off of a figurative Pali, I, lemming-like, must leap right
after it. However, I reserve my First Amendment right to kick
and scream on my way down to the rocks below”]; see also
Witkin, Manual on Appellate Court Opinions (1977) at pp. 168-
169 [just because the Court of Appeal is bound does not mean it is
gagged].)
Respectfully, there is another way to discharge our duty at
the California Court of Appeal. That is to say, the California
Constitution admonishes us to not reverse an order unless there
is a miscarriage of justice. (Cal. Const., Art. VI, § 13.) There is
no miscarriage of justice here. There is a procedural error only.
It does not matter that appellant “checked the box” stating he
could not presently be convicted of murder. This statement is
false. And because appellant falsely checked this box, a new
round of litigation has followed. This is a poor idea stemming
from the declared false premise.
Any person who participates in an uncharged conspiracy to
commit armed robbery, who is present at the time of the murder,
and who tells his co-conspirator to shoot the victim with a .45
caliber pistol is, as a matter of law, a “major participant” acting
with “reckless indifference.” There is no other way to view this
evidence. In denying the motion, the trial court was aware that
appellant denied telling his cohort to shoot, denied confessing to
his uncle, and claimed that he was an innocent passenger in the
robbery get-away car. Had the trial court entertained some
doubt concerning this factual explanation, I would like to think
that it would have ordered an evidentiary hearing and/or issued
an order to show cause. It did not do so. Appellant made no offer
of proof as to what further evidence the trial court could consider
to obtain relief from the LWOP sentence. Now, we order such a
hearing. In my opinion, the superior court has better things to
do. Based upon the present record, the motion will fail. And
there will be yet another appeal. Somewhere along the line,
litigation should cease.
Years ago, I predicted that the courts would be deluged
with resentencing requests and resentencing appeals. I was
correct. The Legislature and the Governor did not truly consider
the judicial impact of the retroactive sea changes in the murder
sentencing laws. Our criminal courts were, and are, already
over-burdened and no additional resources were given to the
judiciary to effect these radical changes in the law. The new laws
impact thousands of persons convicted of murder long ago and
serving, at a minimum, fifteen years to life. The Superior Court
and the Court of Appeal are now spending an inordinate amount
of time and resources as a result of these changes. This is to the
detriment of other appeals from recent judgments.
Nowhere in the Strong opinion is there any mention of the
California Constitution and the familiar harmless error analysis.
2
Here, there was “Strong” error. First, there is no automatic
denial of relief for pre-People v. Banks (2015) 61 Cal.4th 788 and
pre-People v. Clark (2016) 63 Cal.4th 522 trial court “special
circumstances” determinations. Second, the petitioner may have
an evidentiary hearing where there is no conclusive proof that he
is not ineligible for relief. (Strong, supra, 13 Cal.5th at pp. 708-
709.) But we can apply the holding of Strong, and still review the
error pursuant to the California Constitution. It must be
observed that the California Constitution is not suspended for
resentencing statutes. Perhaps the Supreme Court considered
and impliedly rejected the harmless error analysis in the Strong
opinion. We do not know. In my opinion, review should be
granted and the Supreme Court should declare that a “harmless
error” analysis has application in the presenting context.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
3
Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Diane E. Berley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Amanda V. Lopez, Deputy
Attorneys General, for Plaintiff and Respondent.