California Court of Appeal Nov 12, 2021 No. E072780Unpublished
Filed 11/12/21 P. v. Probus CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E072780
v. (Super.Ct.No. SWF003257)
JAMES RAMIREZ PROBUS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant James Ramirez Probus appeals the Riverside County
Superior Court’s summary denial of his petition for resentencing made pursuant to
section 1170.95 of the Penal Code. 1 We affirm.
BACKGROUND
In the wee hours of November 8, 2002, neighbors of Ronald Sommer (the victim)
Here, the jury found the murder was committed while defendant was engaged in
the crime of attempted robbery within the meaning of section 190.2, subdivision
(a)(17)(a). The jury’s true finding made in 2004 as to the section 190.2 special
circumstance allegation is exactly the same finding it would be required to make to
convict defendant under the Senate Bill No. 1437 amendments to section 189.
Accordingly, he is foreclosed as a matter of law from obtaining relief under section
1170.95 because he could still be convicted of murder. (§ 1170.95, subd. (a)(3); People
v. Jones (2020) 56 Cal.App.5th 474, 482, (Jones) review granted Jan. 27, 2021,
S265854.)
In his opening brief, defendant argues the trial court could not find him ineligible
for resentencing as a matter of law by relying on the true finding on the special
circumstance allegation because it had not properly instructed the jury on the meaning of
“major participant.” In his reply brief, he expands that argument to claim it was error to
summarily deny his petition because, after he was convicted, the legal meaning of not
only “major participant” but also the term “reckless disregard for human life” were
substantially changed and narrowed by the Supreme Court’s opinions in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). He
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posits that, because Banks and Clark shed new light on how those terms are to be
construed, an intensive analysis of the facts and his actual conduct is required to
determine his culpability under the special circumstances statute before determining his
eligibility for resentencing under section 1170.95.
Before discussing defendant’s contentions, we note the general rule of appellate
practice that points raised for the first time in a reply brief are not normally considered
because the opposing party has not been given an opportunity to respond. (REO
Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) Even so, we will
consider defendant’s arguments concerning construction of the phrase “reckless disregard
for human life” for three reasons: the analysis undertaken as to that term is the same as
that for “major participant,” the People recognize and discuss in its responsive brief the
treatment in Banks of “reckless indifference for human life,” and the People will not be
prejudiced because we arrive at the same conclusion it urges us to embrace.
Whether a special circumstance finding made before the opinions in Banks and
Clark forecloses section 1170.95 relief as a matter of law is an issue pending before our
Supreme Court in several matters, including one decided by this court in Jones, supra, 56
Cal.App.5th at p. 482.
In Jones, we found Banks and Clark did not narrow the definitions of “major
participant” and “reckless indifference,” and held those terms are to be interpreted in the
manner used in common parlance. (Jones, supra, 56 Cal.App.5th at p. 484.) We held
petitioners who have a special circumstance finding under section 190.2, subdivision (d),
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are not eligible for resentencing pursuant to section 1170.95 as a matter of law because
the jury has already found they were a major participant in a listed felony and acted with
reckless indifference to human life. (Jones, at p. 482; accord, People v. Gomez (2020) 52
Cal.App.5th 1, review granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52
Cal.App.5th 1134, review granted Oct. 14, 2020, S264284; People v. Allison (2020) 55
Cal.App.5th 449; contra, People v. Smith (2020) 49 Cal.App.5th 85, review granted July
22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18,
2020, S264954.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant with a jury-found special circumstance of murder during an attempted robbery is ineligible for resentencing under Penal Code section 1170.95 as a matter of law, as that finding satisfies the requirements for murder liability under the amended statute.
Issues
Whether a prior special circumstance finding under Penal Code section 190.2 precludes relief under section 1170.95 as a matter of law.
Whether the trial court erred in summarily denying the petition without an evidentiary hearing.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The jury’s true finding made in 2004 as to the section 190.2 special circumstance allegation is exactly the same finding it would be required to make to convict defendant under the Senate Bill No. 1437 amendments to section 189.”
“Accordingly, he is foreclosed as a matter of law from obtaining relief under section 1170.95 because he could still be convicted of murder.”