Filed 3/24/23 P. v. Marquez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060921
v. (Super. Ct. No. FSB038602-1)
MARIO MARQUEZ, OPI NION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of San Bernardino,
Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman, Alan L.
Amann and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Mario Marquez appeals from the trial court’s order denying—at the prima
1
facie stage of the proceedings—his petition for resentencing under Penal Code
section 1172.6. The Attorney General concedes, and we agree, that the order must be
reversed because a trial court may not at the prima facie stage engage in factfinding
regarding the petitioner’s culpability; the court may only deny relief if the petitioner is
ineligible for resentencing as a matter of law. (E.g., People v. Pacheco (2022)
76 Cal.App.5th 118, 128 (Pacheco).) If the record of conviction does not support
denying the petition as a matter of law (ibid.), and the “prima facie showing that the
petitioner is entitled to relief” thus remains intact, the court “shall issue an order to show
cause” and “shall hold a hearing to determine whether to vacate the murder . . .
conviction and to recall the sentence and resentence the petitioner.” (§ 1172.6, subds. (c),
(d)(1).) That is the case here. We therefore reverse the order denying Marquez’s petition
and remand the matter for the trial court to issue an order to show cause and conduct the
2
requisite evidentiary hearing.
1
All further statutory references are to the Penal Code.
2
We note that Marquez’s resentencing petition has resulted in bellwether
proceedings by virtue of being filed soon after the enactment of Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437), which authorized such
petitions. (See People v. Marquez (2020) 56 Cal.App.5th 40, 44, 47-52 (Marquez II)
[holding Senate Bill 1437 neither conflicts with Marsy’s Law nor violates the separation
of powers doctrine].) In facing at each stage of these proceedings early questions
regarding implementation of Senate Bill 1437 and related legislation, neither the parties
nor the trial court have had the benefit of subsequent clarifying caselaw—including the
limitation on judicial factfinding at the prima facie stage.
2
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Marquez and his codefendant, Jamie Ortega, of first
degree murder for the March 2003 slaying of Jeffrey Shaffer. A panel of this court
upheld the convictions on appeal. (People v. Marquez (Jan. 14, 2010, G041202)
(Marquez I) [nonpub. opn.].)
In the underlying trial, the prosecution’s theories of the case included
felony murder and/or that the murder was willful, deliberate, and premeditated . The jury
did not specify the theory or theories on which it convicted either defendant. Nor did
their findings that a principal was armed with a handgun indicate Marquez had the gun;
nor were there findings that he personally used or discharged a firearm.
Following the enactment of Senate Bill 1437, Marquez filed his petition
requesting recall of his sentence and resentencing under the new legislation. He alleged
in his petition that he met the statutory eligibility requirements: (1) the information filed
against him “allowed the prosecution to proceed under a theory of felony murder . . . ,”
(2) he was “convicted of 1st or 2nd degree murder pursuant to the felony murder
rule . . . ,” and (3) he “could not now be convicted of 1st or 2nd degree murder because of
changes made to Penal Code §§ 188 and 189” under the new legislation.
The trial court initially struck the petition on grounds that the
newly-authorized recall and resentencing procedures were an illegitimate exercise of
legislative power, a conclusion we reversed in Marquez II.
On remand, the trial court conducted the hearing now at issue. At the
hearing, the prosecutor acknowledged: “Your Honor, just for clarification, [as] the Court
knows this case has been around for a while, and there was an initial rodeo with it. We
did the constitutional matter. I don’t know that the Court has ever actually made a prima
[facie analysis] or made a determination on whether or not the petitioners have [made a]
prima facie showing.”
3
The court indicated the issue before it was whether Marquez’s petition
stated a prima facie case which required it to proceed to the next step of the resentencing
process: “Actually in this case, since I don’t believe I was the trial judge in this case,
counsel had previously submitted the transcript of the testimony at trial, which I have
reviewed along with the other documents and the record of conviction so if counsel are
willing to submit on the prima facie issue on that, I’ll issue a written decision on that
within 30 days.”
The court denied Marquez’s petition 10 days later. The court’s minute
order noted it “has never ruled whether Petitioners have set forth a Prim[a] Facie case for
relief.” Relying on People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the court observed,
“The Supreme Court has recently decided that once Petitioners have been appointed
counsel, and have had the opportunity to address the underlying factual basis for
Petitioners’ conviction, the court may then examine the record of conviction to determine
if the underlying facts are sufficient to find Petitioners have made a Prim[a] Facie
showing for relief, or, whether the underlying facts demonstrate Pe[t]itioners are not
entitled to relief.”
Without ruling on the prima facie question or issuing an order to show
cause and conducting an evidentiary hearing, the court then proceeded to summarize the
trial testimony and make factual findings. The court linked its factual findings to the
Banks/Clark factors in reaching its conclusion that Marquez was a major participant who
3
acted with reckless indifference to human life. It relied on those same facts to find
Marquez acted with the specific intent to kill the victim. Based on these factual findings,
the court concluded Marquez was ineligible for relief because he remained liable for
murder despite the amendments to the law contained in Senate Bill 1437.
3
People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016)
63 Cal.4th 522 (Clark).
4
Marquez now appeals.
DISCUSSION
The People concede reversal and remand is required to allow the court to
conduct a hearing at which evidence may be presented and at which the People will bear
the burden of proof to preclude resentencing. Only then may the court engage in a
factfinding process that includes the weighing of evidence and the discretionary
decision-making required to determine whether to grant or deny a resentencing petition
under Senate Bill 1437 and its progeny.
People v. Mancilla (2021) 67 Cal.App.5th 854 (Mancilla) summarizes the
necessary steps in a trial court’s consideration of a resentencing petition. “If the . . .
petition contains all the required information, including a declaration by the petitioner
that he or she was convicted of murder and is eligible for relief [citation],
section 1170.95, subdivision (c) [now § 1172.6, subd. (c)], requires the court . . . to
determine if the petitioner has made a prima facie showing that he or she is entitled to
relief.” (Mancilla, at p. 863.)
“In determining whether the petitioner has carried the burden of making the
requisite prima facie showing he or she falls within the provisions of section [1172.6] and
is entitled to relief, the superior court properly examines the record of conviction,
‘allowing the court to distinguish petitions with potential merit from those that are clearly
meritless.’ [Citation.] However, ‘the prima facie inquiry under subdivision (c) is limited.
Like the analogous prima facie inquiry in habeas corpus proceedings, ‘“the court takes
petitioner’s factual allegations as true and makes a preliminary assessment regarding
whether the petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.’””’ (Mancilla, supra,
67 Cal.App.5th at p. 863, italics added [internal quotations are to Lewis, supra, 11 Cal.5th
at p. 971].)
5
As the Mancilla court noted, the Supreme Court in Lewis also specified that
“‘“if the record, including the court’s own documents,” “contain[s] facts refuting the
allegations made in the petition, ‘then’ the court is justified in making a credibility
determination adverse to the petitioner.””’ (Mancilla, supra, 67 Cal.App.5th at p. 863,
see Lewis, supra, 11 Cal.5th at p. 971.)
Subsequent to Lewis, the Supreme Court has clarified that permissible
judicial factfinding at the prima facie stage is limited and does not include, for example,
determining whether the petitioner was a “major participant” or acted with “reckless
indifference to human life” under standards established in Banks/Clark for felony murder,
which, if met, would preclude the petitioner from resentencing. (People v. Strong (2022)
13 Cal.5th 698, 719-720.) To the contrary, the high court disapproved a line of cases that
had held the trial court “may reject a petition at the prima facie stage if it independently
examines the record and determines, applying the Banks and Clark standards, that
sufficient evidence supports [guilt] findings” under those standards. (Id. at p. 719) The
court explained that “such a determination would entail factfinding prohibited at the
prima facie stage.” (Id. at p. 720.)
This court and others have therefore held that a trial court’s consideration
of the so-called facts of the case at the prima facie stage is “‘limited to readily
ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).’” (Pacheco, supra, 76 Cal.App.5th at p. 125.) Thus, in
People v. Harden (2022) 81 Cal.App.5th 45, 52, the appellate court illustrated the trial
court’s limited factfinding role at the prima facie stage as follows: “For example, if the
record shows that the jury was not instructed on either the natural and probable
consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a
matter of law.”
6
Here, as the People acknowledge, the trial court’s ruling denying
Marquez’s petition “was rooted in evidence derived from the trial testimony.” Engaging
in such evidentiary factfinding is precisely the sort of “weighing of evidence” and
“exercise of discretion” that is prohibited to refute the petitioner’s allegations, which are
presumed to be true at the prima facie stage.
As Mancilla explained, once the petitioner’s “prima facie showing has been
made, the court must issue an order to show cause and hold an evidentiary hearing to
determine whether to vacate the murder conviction and resentence the petitioner on any
remaining counts. [Citation.] At the hearing the prosecution has the burden of proving
beyond a reasonable doubt that the petitioner is ineligible for resentencing. [Citations.]
The prosecutor and petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Mancilla, supra, 67 Cal.App.5th
at p. 863.) We remand the matter for that hearing to be held.
DISPOSITION
The trial court’s order denying Marquez’s resentencing petition is reversed.
On remand, the court is directed to issue an order to show cause why the petition should
not be granted, and to thereafter conduct a hearing on the issue at which the parties are
entitled to present additional evidence.
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
DELANEY, J.
7