California Court of Appeal Oct 21, 2022 No. E072781AUnpublished
Filed 10/21/22 P. v. Carrera CA4/2 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072781
v. (Super.Ct.No. RIF150270)
TONY MARTINEZ CARRERA, OPINION ON TRANSFER
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D Molloy, Judge.
Reversed and remanded with directions.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorney
General, Robin H. Urbanski and Meredith S. White, Deputy Attorneys General, for
Plaintiff and Respondent. 1
Defendant and appellant, Tony Martinez Carrera, filed a petition for resentencing
pursuant to former Penal Code section 1170.95,1 which the court dismissed. On appeal,
defendant contended the court erred in dismissing his petition based on the jury’s true
finding on a felony-murder special-circumstance allegation. By opinion filed July 16,
2020, we affirmed.
On September 28, 2022, the California Supreme Court transferred the matter back
to us with directions to vacate our decision and reconsider the cause in light of People v.
Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952
(Lewis). On September 30, 2022, we ordered our decision vacated and set a briefing
schedule.
Defendant argues that, pursuant to Strong, the court erred in determining the jury’s
true finding on the felony-murder special-circumstance allegation rendered prior to the
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) made him ineligible for relief. Defendant maintains he made the
requisite prima facie showing, and the matter should be remanded for an order to show
cause (OSC) hearing. The People concede that the matter should be remanded for further
proceedings. We reverse and remand the matter for reconsideration.
1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated. 2
I. PROCEDURAL BACKGROUND 2
A jury found defendant guilty of first degree murder (§ 187, count 1) and robbery
(§ 211, count 2). The jury also returned a true finding on the special circumstance
allegation that the murder was committed while defendant was engaged in the
commission of a robbery. (§ 190.2, subd. (a)(17)(A).) The jury found not true the
allegation that defendant personally used a deadly and dangerous weapon to commit the
defendant to life without the possibility of parole. (Carrera, supra, E053997.)
Defendant appealed. On May 7, 2013, this court affirmed defendant’s
convictions. (Carrera, supra, E053997.)
On February 11, 2019, defendant filed a petition for resentencing under former
section 1170.95. The People filed a response arguing, in pertinent part, that defendant’s
petition should be summarily denied because the jury’s true finding on the robbery-
murder special-circumstance allegation rendered him per se ineligible for relief.
2 On our own motion, we take judicial notice of our prior nonpublished opinion in People v. Carrera (May 7, 2013, E053997).) [nonpub. opn.] (Carrera), from defendant’s appeal from the judgment. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1).) We exclude a recitation of the facts stated in our prior opinion as irrelevant to the issues raised on appeal.
We reserved ruling on the People’s request for judicial notice, filed on November 6, 2019, of four petitions for writ of habeas corpus previously filed by defendant and the disposition orders denying those petitions. We hereby deny the request as irrelevant to the issues raised on appeal. (Evid. Code, §§ 452, subd. (d) & 459.)
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On April 10, 2019, defendant filed a request for a 60-day extension to file a reply
to the People’s response. At the status conference hearing on April 26, 2019, a deputy
public defender represented defendant and requested a stay until August 16, 2019. The
People informed the court that a jury had found the robbery-murder special-circumstance
allegation true, and the jury was given CALCRIM 703, meaning that it was required to
find that defendant had the intent to kill or was a major participant who acted with
reckless indifference to human life. Defense counsel said he had not reviewed the record.
The court dismissed the petition and noted that the defense was objecting “for the
record.”
II. DISCUSSION
Defendant argues that the court erred in dismissing his petition, and the matter
should be remanded for an OSC hearing. The People concede the matter should be
remanded for further proceedings. We remand the matter for a new prima facie hearing.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the
felony-murder rule to effectuate the Legislature’s declared intent ‘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.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill
1437 also created a special procedural mechanism for those convicted under the former
law to seek retroactive relief under the law as amended. [Citations.] Under newly
enacted section 1172.6, the process begins with the filing of a petition containing a
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declaration that all requirements for eligibility are met [citations], including that ‘[t]he
petitioner could not presently be convicted of murder or attempted murder because of
changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary declaration and
other required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.) “As a general matter, a
trial court should afford both parties the opportunity to brief the question of a petitioner’s
eligibility for relief and may extend the briefing deadlines ‘for good cause’ as necessary
to ensure that such an opportunity is meaningful.” (Lewis, supra, 11 Cal.5th at p. 966,
fn. 4.)
“While the trial court may look at the record of conviction after the appointment of
counsel to determine whether a petitioner has made a prima facie case for . . . relief, the
prima facie inquiry . . . 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.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’” (Lewis, supra,
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11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he ‘prima facie
bar was intentionally and correctly set very low.’” (Ibid.)
Where a defendant’s “case was tried before both Banks and Clark, . . . special
circumstance findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s]
in concluding otherwise.” (Ibid.)
If, instead, a defendant has made a prima facie showing of entitlement to relief,
“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.)
Once the court determines that a defendant has made a prima facie showing, “the court
must [then] hold an evidentiary hearing at which the prosecution bears the burden of
proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that
there is substantial evidence to support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and enhancements attached to the
conviction, shall be vacated and the petitioner shall be resentenced on the remaining
charges.’” (Id. at p. 709.) “Senate Bill 1437 relief is unavailable if the defendant was
either the actual killer, acted with the intent to kill, or ‘was a major participant in the
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underlying felony and acted with reckless indifference to human life . . . .’” (Id. at
p. 710.)
“[E]ffective January 1, 2022, the Legislature limited use of prior appellate
opinions, allowing trial judges to [only] ‘consider the procedural history of the case
recited.’ [Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges
should not rely on the factual summaries contained in prior appellate decisions when a
section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing.” (People
v. Clements (2022) 75 Cal.App.5th 276, 292.){Fourth Dist., Div. Two}
Here, the jury rendered the special murder circumstance finding before both Banks
and Clark were decided. With respect to those findings, “no judge or jury has ever found
the currently required degree of culpability . . . .” (Strong, supra, 13 Cal.5th at p. 718,
italics added.) Thus, as we originally determined, the special murder circumstance
finding did not, alone, render defendant per se ineligible for relief. Therefore, the court
below erred in denying defendant’s petition on that basis.
However, we also determined, in reliance on this court’s prior opinion, that any
error was harmless because there was no reasonable possibility defendant’s counsel could
have convinced the court he was entitled to relief because the evidence was sufficient to
support a finding that he was a major participant who acted with reckless indifference to
human life under Banks and Clark. Thus, we effectively reduced the evidentiary burden
to sufficiency of the evidence, from beyond a reasonable doubt, and erroneously relied
exclusively upon the facts contained in this court’s prior opinion. Therefore, the matter
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must be remanded for a new prima facie hearing prior to which defendant should be
given the opportunity, if he so elects, to file a reply to any response filed by the People.
III. DISPOSITION
The order dismissing defendant’s petition is reversed. The matter is remanded
with directions to hold a new prima facie hearing. We express no opinion on whether
defendant is entitled to relief following the hearing.