People v. Rangel CA2/8 ( 2022 )

Filed 12/27/22 P. v. Rangel CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B311083
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA050596)
v.
RAYMOND RANGEL, III,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Bruce F. Marrs, Judge. Reversed.
Edward H. Schulman, 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, Idan Ivri, Charles S. Lee and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
INTRODUCTION
On December 21, 2021, we affirmed the summary denial of
Raymond Rangel III’s s petition for resentencing under Penal
Code1 section 1170.95.2 This section allows those convicted of
murder to seek retroactive relief if changes to the murder
statutes enacted in Senate Bill No. 1437 affect their previously
sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4; People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) In 2002, a jury
found Rangel and co-defendant Daniel Louis Lopez guilty of first
degree special circumstance murder while engaged in a robbery
(§ 190.2, subd. (a)(17)). The jury also found true the special
circumstance allegation that Lopez, but not Rangel, personally
used a firearm causing the victim’s death. Both defendants were
sentenced to a minimum of life imprisonment without possibility
of parole. Both appealed their convictions. On May 30, 2003,
this court rejected all claims on appeal, including a challenge to
the sufficiency of the evidence to support the jury’s special
circumstance findings, and affirmed the judgment in its entirety.
(People v. Daniel Louis Lopez, Jr., et al (May 30, 2003, B158058)
[nonpub. opn.].)
On April 17, 2020, Rangel filed a petition to vacate his
conviction. On February 5, 2021, the trial court denied the
petition, stating: “A defendant convicted of murder with felony
murder of special circumstances is not, as a matter of law,
1 Further section references are to the Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
We refer to the current section 1172.6 in this opinion.
2
eligible for resentencing pursuant to section 1170.95 because
those elements of major participant and acting with reckless
indifference to human life have already been established by a
jury beyond a reasonable doubt.” Rangel filed a timely notice of
appeal.
On appeal Rangel argued the trial court erroneously denied
his 1170.95 petition because the true finding on the robbery-
murder special circumstance allegation does not, as a matter of
law, defeat his prima facie case and preclude eligibility for
resentencing. He argued the California Supreme Court decisions
in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark) substantially changed the
law on felony murder and he is entitled to an evidentiary hearing
on his resentencing petition.
We disagreed and affirmed the trial court’s order. On
November 22, 2022, the California Supreme Court ordered us to
vacate our decision and “reconsider the cause in light of People v.
Strong (2022) 13 Cal.5th 698. (Cal. Rules of Court, rule
8.528(d).)” We now do so and reverse the order of the trial court
denying Rangel’s petition.
FACTS
We recite the relevant facts from our prior opinion in this
case. (People v Lewis (2021) 11 Cal.5th 952, 970–971 (Lewis)
[court may rely on record of conviction, including appellate
opinion, to determine whether a prima facie showing has been
made].)3
3 On June 28, 2021, we granted appellant’s request that we
take judicial notice of the records and files of his original appeal.
On July 27, 2021, appellant filed a second request that we take
3
Bodyguard Sidney Hall was shot and killed at a bachelor
party gone awry. Hall had been assigned escort and bodyguard
duties for one of several exotic dancers performing at the party.
When three unruly male guests began heckling and harassing
the dancers, Hall ejected them. Words were exchanged, tempers
flared, and in the end Hall sustained a single fatal wound from a
gunshot fired by co-defendant Lopez. One of the exotic dancers,
Torres, and her bodyguard, Santos, claimed they were robbed at
gunpoint by two of the hecklers, identified as Rangel and Lopez,
after Lopez shot Hall.
DISCUSSION
I. Senate Bill No. 1437
Effective January 1, 2019, Senate Bill No. 1437 was
enacted to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, 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. (Stats. 2018, ch. 1015, § 1,
subd. (f); (Gentile, supra, 10 Cal.5th at p. 842.) Senate Bill No.
1437 amended sections 188 and 189 and added section 1172.6,
which provides a procedure by which those convicted of murder
can seek retroactive relief if the amendments affect their
previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Under section 1172.6, a defendant may petition for
resentencing if he or she was “convicted of felony murder or
murder under a natural and probable consequences doctrine” and
judicial notice of Exhibit A attached to the motion (namely, jury
instructions from the trial). We grant that request.
4
the following conditions are met: (1) a charging document was
filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; (2) the petitioner
was convicted of first or second degree murder following trial or
an accepted plea; and (3) the petitioner could not be convicted of
first or second degree murder because of changes to sections 188
or 189 made by Senate Bill No. 1437. (§ 1172.6, subd. (a); Lewis,
supra, 11 Cal.5th at pp. 959–960.)
After the defendant files and serves a complete petition, the
“prosecutor shall file and serve a response. The petitioner may
file and serve a reply within 30 days after the prosecutor’s
response is served. These deadlines shall be extended for good
cause. After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
has made a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court
declines to make an order order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
If the court issues an order to show cause, it must hold a
hearing to determine whether to vacate the murder conviction,
recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
previously been sentenced, provided the new sentence is not
greater than the initial sentence. (§ 1172.6, subd. (d)(1); see
Lewis, supra, 11 Cal.5th at p. 960.)
II. Rangel Is Entitled to Issuance of an Order to Show Cause
and an Evidentiary Hearing on His Petition for Resentencing
5
Here, the jury found Rangel guilty of first degree felony
murder and found true the robbery-murder special circumstance
in section 190.2, subdivision (a)(17). In doing so, the jury
necessarily made one of these essential findings in accordance
with the jury instructions it received from the court: Rangel was
the actual killer; Rangel acted as an aider and abettor with intent
to kill; or Rangel acted as a major participant in the underlying
felony with reckless indifference to human life. Senate Bill
No. 1437 amended section 189, subdivision (e) to require proof
beyond a reasonable doubt of facts supporting one of these same
three theories in order to find a defendant guilty of felony
murder. In our prior opinion, we concluded the true finding for
the felony murder special circumstance precludes relief even after
the passage of Senate Bill No. 1437.
After we rejected appellant’s claims, our Supreme Court
decide People v. Strong, supra, 13 Cal.5th 698 (Strong). In
Strong, the Court held that a true finding on a felony murder
special circumstance allegation rendered prior to the Banks and
Clark decisions does not preclude, as a matter of law,
resentencing relief under section 1172.6. (Strong, at p. 710.) The
court reasoned Banks and Clark represent the type of significant
change in law traditionally found to warrant re-examination of
an earlier litigated issue. (Strong, at pp. 717–718.)
Here, the judgment on the true findings for the special
circumstance was entered in 2002, long before Banks and Clark
were decided. The People concede reversal and remand are
required and an order to show cause and evidentiary hearing are
appropriate. We agree.
6
DISPOSITION
The order is reversed. The trial court is directed to issue
an order to show cause and conduct an evidentiary hearing
pursuant to section 1172.6, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
7