People v. Bravo CA2/7 ( 2021 )

Filed 4/28/21 P. v. Bravo CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304643
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA167679-02)
v.
ORDER MODIFYING
RAUL BRAVO et al., OPINION
(NO CHANGE IN
Defendants and APPELLATE JUDGMENT)
Appellants.
THE COURT:
It is ordered that the opinion filed herein on April 21, 2021
be modified as follows:
On page 1, Richard J. Kirschner and Alan Schneider,
Judges, is changed to Richard H. Kirschner and Alan Schneider,
Judges.
There is no change in the appellate judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
Filed 4/21/21 P. v. Bravo CA2/7 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304643
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA167679-02)
v.
RAUL BRAVO et al.,
Defendants and
Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Richard J. Kirschner and Alan Schneider, Judges.
Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant Raul Bravo.
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant Vincent Martinez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Allison H. Chung, Deputy
Attorneys General for Plaintiff and Respondent.
_________________
Raul Bravo and Vincent M. Martinez appeal from
postjudgment orders summarily denying their petitions for
resentencing under Penal Code section 1170.951 as to their prior
convictions of first degree murder. Because the jury was not
instructed on felony murder or the natural and probable
consequences doctrine, Bravo and Martinez are not eligible for
relief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Killing
We described the killing of Edward Gonzalez in our prior
opinion in People v. Bravo (Jan. 2, 2001, B135531) [nonpub. opn.]
(Bravo I): “Gonzalez was a member of the ‘18th Street’ gang,
while [Bravo and Martinez] admitted belonging to the rival
‘Burlington Locos’ gang. Gonzalez was shot in the back after
running out of a liquor store which he had visited in the company
of four companions. Before he died Gonzalez told a witness that
‘Burlingtons’ shot him. Eyewitnesses watched as Martinez
observed the car in which Gonzalez rode approach the store, then
confer with a man fitting Bravo’s description. Witnesses placed
Martinez inside the store shortly before Gonzalez was shot, and
one eyewitness identified Martinez as the man who shot
Gonzalez. A witness saw Bravo in the store wearing a flannel
1 All statutory references are to the Penal Code.
2
shirt, just before Gonzalez was shot. Another witness testified
that a man in a flannel shirt fitting Bravo’s description fired the
shots (two, followed by a pause, and then three more). Just
before entering the store a man fitting Bravo’s description had
asked men leaving the store ‘where they were from’—a widely
used gang challenge. Other evidence established that [Bravo and
Martinez] were together at Bravo’s apartment, located near the
liquor store, both shortly before the shooting and soon after it.
An eyewitness who knew Bravo heard the shots, and saw Bravo
and Martinez run from the scene and enter Bravo’s apartment
complex.”
B. The Information, Jury Instructions, Convictions, and
Appeals
Bravo and Martinez were jointly charged with murder
(§ 187, subd. (a)), and the information specially alleged each used
a firearm in the commission of the offense (§ 12022.5, subd. (a))
and a principal was armed in the commission of the offense
(§ 12022, subd. (a)(1)). The trial court2 instructed the jury with
CALJIC No. 3.01 on aider and abettor liability; CALJIC Nos. 8.10
and 8.11 on murder with malice aforethought and express and
implied malice; and CALJIC Nos. 8.20 and 8.30 on first and
second degree murder. The trial court did not instruct the jury
on either felony murder or the natural and probable
consequences doctrine.
The jury found Bravo and Martinez guilty of first degree
murder and found the allegations true that a principal was
2 Judge Michael M. Duffey.
3
armed in the commission of the offense. The trial court sentenced
both Bravo and Martinez to 26 years to life in prison.
On appeal, Bravo and Martinez argued there was
insufficient evidence to support the verdicts and their attorneys
provided ineffective assistance of counsel. We rejected Bravo’s
and Martinez’s contentions and affirmed the convictions. We
explained as to the sufficiency of the evidence, “This evidence met
the constitutional requirement that guilt be shown by evidence
sufficient to persuade reasonable jurors beyond a reasonable
doubt. It showed that [Bravo and Martinez] went forth together,
armed with a loaded gun, in search of a rival gang member, found
Gonzalez, followed him into the store, pursued him out of the
store, and shot him in the back as he fled. This was strong
evidence of a planned, purposeful killing, motivated by gang
rivalry—in short a premeditated, deliberate murder. The same
body of evidence sufficiently showed that [Bravo and Martinez]
aided and abetted one another. They met at Bravo’s residence
before the crimes, conferred on the street after spotting Gonzalez,
together followed Gonzalez into the store, together pursued him
out, and together fled the scene. This is compelling direct
evidence that they encouraged and assisted each other in
carrying out the murder, and strong circumstantial evidence that
each knew of the intended crime.” (Bravo I, supra, B135531.)
C. The Petitions for Resentencing
On December 16, 2019 Bravo, representing himself, filed a
form petition for resentencing and supporting declaration seeking
to vacate his murder conviction and be resentenced in accordance
with recent statutory changes relating to accomplice liability for
murder. In his petition, Bravo declared he “was convicted of 1st
4
or 2nd degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine” and he “could not
now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019.”
He did not check the box on the form stating he was not the
actual killer or the box stating he did not act with the intent to
kill. He likewise did not check the box stating he was not a major
participant in the felony and did not act with reckless
indifference to human life. Martinez filed an identical petition.
Both petitions requested the appointment of counsel.
Bravo’s petition for resentencing was assigned to Judge
Richard Kirschner.3 Judge Kirschner did not appoint counsel for
Bravo or hold a hearing. On January 9, 2020 the court
summarily denied Bravo’s petition, stating Bravo “as a matter of
law has failed to make a prima facie showing that he falls within
the provisions of section 1170.95.” The court noted it considered
the record of conviction, including our opinion in Bravo I. In
denying the petition, the court reasoned, “[Bravo] and a
codefendant were tried for the deliberate murder of a rival gang
member. The evidence showed that both defendants proceeded
together, armed with a loaded gun, in search of a rival gang
member, found that gang member, followed him into [the] store,
pursued him out of the store, and shot him in the back as he fled.
The evidence persuaded jurors beyond a reasonable doubt of a
planned, purposeful killing, motivated by gang rivalry, in short a
premeditated, deliberate murder. That same evidence
3 Judge Duffey had retired from the Los Angeles Superior
Court by the time Bravo and Martinez filed their petitions for
resentencing.
5
demonstrated that both defendants directly aided and abetted
one another in that murder.”
Martinez’s petition for resentencing was assigned to Judge
Alan Schneider. On April 4, 2019 Judge Schneider appointed
counsel for Martinez. The People filed a response to Martinez’s
petition in which they argued section 1170.95 was
unconstitutional and the jury was not instructed on either felony
murder or the natural and probable consequences doctrine. The
People attached to their response the jury instructions provided
to the jury at trial. Martinez’s attorney filed a reply brief arguing
the statute is constitutional. The court held a hearing on
December 17, 2019, at which counsel appeared and submitted on
the papers. Martinez made a written waiver of his appearance.
The superior court denied the petition, explaining Martinez
“simply is not eligible for resentencing based on the record in the
case. . . . He appears to have been a straight aider and abettor,
so he does not qualify.”
Bravo and Martinez timely appealed.
DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill
1437), effective January 1, 2019, amended the felony murder rule
and eliminated the natural and probable consequences doctrine
as it relates to murder through the amendment of sections 188
and 189. (See People v. Gentile (2020) 10 Cal.5th 830, 842-843,
847-848.) New section 188, subdivision (a)(3), provides, “Except
as stated in subdivision (e) of Section 189, in order to be convicted
of murder, a principal in a crime shall act with malice
6
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” New section 189,
subdivision (e), in turn, limits the felony-murder rule exception to
the malice requirement to circumstances where the People prove
the defendant “was a major participant in the underlying felony
and acted with reckless indifference to human life, as described
in subdivision (d) of Section 190.2.”
Senate Bill 1437 also provides a procedure in new section
1170.95 for an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4; see People v.
Gentile, supra, 10 Cal.5th at p. 847.) As we explained in People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 (Verdugo), review
granted March 18, 2020, S260493, “If the petition contains all
required information, section 1170.95, subdivision (c), prescribes
a two-step process for the court to determine if an order to show
cause should issue: ‘The court shall review the petition and
determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. The prosecutor shall file and serve a
response . . . and the petitioner may file and serve a reply . . . . If
the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.’”
(Accord, People v. Rodriguez (2020) 58 Cal.App.5th 227, 237,
review granted Mar. 10, 2021, S266652; People v. Perez (2020)
54 Cal.App.5th 896, 903 (Perez), review granted Dec. 9, 2020,
7
S265254; but see People v. Cooper (2020) 54 Cal.App.5th 106, 123,
review granted Nov. 10, 2020, S264684 [once the trial court
determines the petition contains the required information, the
court performs a single prima facie review, and if the defendant
makes a prima facie showing of entitlement to relief, the court
issues an order to show cause].)4
In determining whether the petitioner has made a prima
facie showing he or she is entitled to relief under section 1170.95,
subdivision (c), “[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record ‘contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’ [Citation.]
However, this authority to make determinations without
4 The Supreme Court in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598,
granted review on the following questions: “(1) May superior
courts consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]” (Supreme Ct. Minutes, Mar. 18, 2020, p. 364.)
Bravo has requested we take judicial notice of the People’s
answer to the briefs of amici curiae filed in Lewis. On February
1, 2021 we denied Bravo’s request. We therefore do not consider
the argument Bravo presents in his reply brief based on the
position taken by the People in Lewis.
8
conducting an evidentiary hearing pursuant to section 1170.95,
subd. (d) 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 . . . .” (People v. Drayton (2020) 47 Cal.App.5th 965,
980; accord, Perez, supra, 54 Cal.App.5th at pp. 903-904, review
granted.)
After issuing an order to show cause, the trial court must
hold a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) If
a hearing is held, “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
People v. Rodriguez, supra, 58 Cal.App.5th at p. 237, review
granted.) The prosecution has the burden of proving beyond a
reasonable doubt the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3); Rodriguez, at p. 237.)
B. The Trial Court Did Not Err in Denying Bravo’s and
Martinez’s Petitions for Resentencing
Martinez contends the superior court conducted improper
factfinding in determining he was a direct aider and abettor, and
further, the trial court’s instruction on implied malice allowed the
jury to convict him under the natural and probable consequences
doctrine even though the instruction was not given.5 Bravo
contends the superior court erred when it summarily denied his
petition for resentencing without first appointing counsel because
5 Bravo filed a joinder in Martinez’s opening brief.
9
he made a prima facie showing in his petition that he falls within
the provisions of section 1170.95. Neither contention has merit.
The jury was not instructed on and therefore could not have
convicted Bravo or Martinez of either felony murder or murder
under the natural and probable consequences doctrine. Further,
the facts do not support either theory.6
Bravo urges us to follow the First District’s holding in
People v. Cooper, supra, 54 Cal.App.5th at page 123, review
granted, which rejected our conclusion in Verdugo that
section 1170.95 only requires appointment of counsel after the
superior court determines as part of its first prima facie review
the petitioner is eligible for relief. The Court of Appeal in Cooper
concluded “a petitioner is entitled to counsel upon the filing of a
facially sufficient petition for relief that requests counsel be
appointed.” (Cooper, at p. 123.) Bravo has not presented any
persuasive reasons for us to deviate from our opinion in Verdugo,
and we decline his invitation to do so.
As we explained in Verdugo, to determine whether the
petitioner is eligible for relief, the court may examine “documents
in the court file or otherwise part of the record of conviction that
are readily ascertainable,” including “the complaint, information
or indictment filed against the petitioner; the verdict form or
factual basis documentation for a negotiated plea; and the
abstract of judgment.” (Verdugo, supra, 44 Cal.App.5th at
6 We review the superior court’s ruling that Bravo and
Martinez were ineligible for relief as a matter of law de novo.
(People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted
Nov. 18, 2020, S264978; Perez, supra, 54 Cal.App.5th at p. 904,
review granted.)
10
pp. 329-330, review granted.) We added, “The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189 (see § 1170.95, subd. (a)(3)).” (Id. at p. 330.) Further,
“[a] court of appeal opinion, whether or not published, is part of
the appellant’s record of conviction.” (Id. at p. 333.)
The jury instructions given by the trial court are also part
of the record of conviction. (People v. Soto (2020) 51 Cal.App.5th
1043, 1055, review granted Sept. 23, 2020, S263939; People v.
Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8,
2020, S262481.) Although the jury here was instructed on aider
and abettor liability, it was not instructed on either felony
murder or the natural and probable consequences doctrine.
Further, Bravo and Martinez were not charged with nor was the
jury instructed on a target crime on which the natural and
probable consequences doctrine could be predicated. As the
Court of Appeal in Soto concluded in affirming the trial court’s
summary denial of the defendant’s section 1170.95 petition,
“[T]he jurors were not provided any instruction on which they
could have found [the defendant] guilty of murder under [the
natural and probable consequences] doctrine. Rather, under the
instructions, the jury necessarily found Soto culpable for murder
based on his own actions and mental state as a direct aider and
abettor of murder.” (Soto, at p. 1055;7 see Edwards, at p. 675
7 The Soto court rejected the argument that the reference to
the “‘natural consequences’” of an intentional act in CALJIC
No. 8.11 on implied malice showed the defendant had been
11
[affirming summary denial of § 1170.95 petition where jury not
instructed on felony murder or the natural and probable
consequences doctrine].)
Here, in the absence of instructions on felony murder or the
natural and probable consequences doctrine, the jury could have
convicted Bravo and Martinez as either the shooter or a direct
aider and abettor of the shooter, but not, as suggested by Bravo
and Martinez, based on a theory of liability that is no longer valid
following Senate Bill 1437’s amendments to sections 188 and 189.
We therefore do not credit the averments to the contrary in the
petitions filed by Bravo and Martinez stating they were convicted
based on a theory of felony murder or the natural and probable
consequences doctrine. (Perez, supra, 54 Cal.App.5th at pp. 903-
904, review granted; People v. Drayton, supra, 47 Cal.App.5th at
p. 980.)
Further, the underlying facts show Bravo and Martinez
were convicted as direct aiders and abettors (or as the shooter).
As we explained in Bravo I, supra, B135531, Bravo and Martinez
“went forth together, armed with a loaded gun, in search of a
rival gang member, found Gonzalez, followed him into the store,
pursued him out of the store, and shot him in the back as he fled.
This was strong evidence of a planned, purposeful killing,
convicted of murder based on the natural and probable
consequences doctrine. (People v. Soto, supra, 51 Cal.App.5th at
p. 1059, review granted [“The ‘natural consequences’ language in
the instruction for second degree murder does not transform
Soto’s conviction into one for murder under the natural and
probable consequences doctrine within the meaning of section
1170.95.”].) We agree with our colleagues in Soto and reject this
argument by Martinez.
12
motivated by gang rivalry—in short a premeditated, deliberate
murder.”
Because Bravo failed to make the initial prima facie
showing for relief under section 1170.95, subdivision (c), he was
not entitled to appointed counsel or a hearing. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 901-902, review granted
Aug. 12, 2020, S263219 [because the court summarily denied the
petition at the first prima facie review stage, “the appointment of
counsel was not statutorily required by section 1170.95”];
Verdugo, supra, 44 Cal.App.5th at pp. 332-333, review granted
[“If, as here, the court concludes the petitioner has failed to make
the initial prima facie showing required by subdivision (c),
counsel need not be appointed.”]; People v. Lewis, supra,
43 Cal.App.5th at p. 1140, review granted [“Given the overall
structure of the statute, we construe the requirement to appoint
counsel as arising in accordance with the sequence of actions
described in section 1170.95 subdivision (c); that is, after the
court determines that the petitioner has made a prima facie
showing that petitioner ‘falls within the provisions’ of the statute,
and before the submission of written briefs and the court’s
determination whether petitioner has made ‘a prima facie
showing that he or she is entitled to relief.’”].)
13
DISPOSITION
The orders denying Bravo’s and Martinez’s petitions for
resentencing under section 1170.95 are affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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