People v. Amador CA2/2 ( 2021 )

Filed 1/29/21 P. v. Amador CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305288
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA234510)
v.
CARLOS M. AMADOR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Kathleen A. Kennedy, Judge. Affirmed.
Marilee Marshall for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 2003, defendant and appellant Carlos M. Amador
pleaded guilty to four counts of second degree murder (Pen. Code,
§ 187)1 and was sentenced to four concurrent terms of 15 years to
life in state prison.
On April 22, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. Following a hearing,
the trial court denied the petition, finding that defendant had not
stated a prima facie case for relief.
Defendant timely filed a notice of appeal. He argues that
because he established a prima facie case that he is potentially
eligible for resentencing relief, the trial court should have issued
an order to show cause and held an evidentiary hearing.
Although the People agree that the matter should be reversed, we
are not convinced. As a matter of law, defendant did not
demonstrate a prima facie case for resentencing relief.
Accordingly, we affirm.
FACTUAL BACKGROUND2
Just after 11:00 p.m. on May 4, 2002, Harish “Harry”
Kumar3 (Kumar) came home and discovered his home engulfed in
flames. Police officers and firefighters responded to the home.
Four members of Kumar’s family (his mother (Sitaben Patel
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Because defendant pleaded guilty prior to trial, parts of
this factual background are taken from the transcript of his
preliminary hearing, a copy of which was attached to the
opposition to defendant’s resentencing petition. Other facts are
drawn from defendant’s testimony at codefendant Virenda “Victor”
Govin’s (Victor) trial.
3 Harry Kumar was also known as Harry Patel.
2
(Patel)), his wife (Gita Kumar (Gita)), and his two children (Paras
Kumar (Paras) and Tulsi Kumar (Tulsi))4 were found burned to
death in a bedroom near the entry of the home. Each victim was
bound in some fashion and had duct tape over his or her mouth
and/or eyes. Fire investigators determined there were three
separate incendiary fires in the residence.
Kumar’s family owned the Universal City Inn in Studio
City. Gita was in charge of the business. Victor owned a hotel,
the Studio Place Inn, located directly adjacent to the Universal
City Inn. Victor had asked Kumar to sign papers giving him
rights to an easement in the alley. Kumar told Victor it would be
Gita’s decision. The Kumars and Victor both had expansion
projects that required use of the alley.
After seeing news coverage of the murders, Angelberto
Novoa (Novoa) contacted detectives and told them that six weeks
prior to the fire, individuals known to him as “Pedro” and
“Freddie” (later identified as defendant and Victor, respectively)
solicited him and a friend to go to the same house that was
burned to intimidate the people who lived there into signing
papers. Novoa said that he and Antonio Renteria met with
defendant, but ultimately declined to work with them.
Detectives interviewed Milton Salas (Salas), who described
a conversation he had with defendant. Defendant told Salas that
he had gone with two of his Indian friends (who owned hotels) to
a house to get documents signed, that “‘things got out of hand,’”
someone’s face had been seen, and one of them ordered that
4 Because some of the victims and two of the perpetrators
share the same last names, for ease we refer to them by their
first names.
3
everyone in the house be killed and the house burned. Defendant
said he took watches and/or jewelry from the house.
Detectives interviewed Droshawn Goodin, who told them
that defendant had asked him to be an alibi witness for the night
of the murders.
Video surveillance footage showed defendant’s truck
driving toward the victims’ residence around 9:00 p.m. on the
date of the murders, and driving away from the residence shortly
after 11:00 p.m.
Defendant was arrested and interviewed by the police.
According to his preliminary hearing testimony, defendant
admitted his involvement in the crimes and identified Victor and
Pravin “Peter” Govin (Peter) as his coperpetrators. Defendant
said that on the night of the offense, he met Victor and Peter at a
restaurant around 6:00 p.m. They then drove together to the
victims’ house in defendant’s truck. Once there, Victor went up
to the door first. Peter and defendant, each armed with a gun,
went to the door some time later. Peter ordered the occupants of
the home, including Victor, to lay on the floor, as a home invasion
robbery being staged. Peter told defendant to go to one of the
bedrooms where the children would have been. Defendant went
into the bedroom of 18-year-old Paras. Victor subsequently
joined them and tied up Paras.
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Defendant said that he and Victor also went to 16-year-old
Tulsi’s bedroom and tied her up as well. Both children were then
moved to another bedroom. Defendant said that he, Peter, and
Victor looked around the house for money.
Defendant stated that Patel and Gita were at one point
restrained in the living room; Peter repeatedly kicked and
shouted at Gita. Paras broke free from the bedroom and pleaded
with the men to stop attacking his mother. Peter and Victor then
assaulted Paras and restrained him again in the bedroom.
Defendant said that he told Peter and Victor that he had not
“signed on for this” and “wanted no part of it,” so he went outside
to his truck.
Within five minutes, Peter and Victor joined him.
Defendant offered a slightly different account of the events
when he testified at codefendant Victor’s trial. According to the
summary of that testimony, which was attached to the People’s
opposition to defendant’s resentencing petition, defendant
testified that he participated in the armed robbery at the Kumar
residence and helped bind the victims. Defendant also testified
that at Victor’s direction, he poured flammable liquid in the
master bedroom. At one point, defendant went to the bedroom
where the victims were tied up. When defendant questioned
Victor’s actions and asked why he was “‘killing them,’” Victor
replied, “‘Because she saw me.’” Defendant told Victor, “‘Okay. If
she saw you, why don’t you just kill her?’” Victor said that they
were all going to die. Defendant maintained that he left at that
point.
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PROCEDURAL BACKGROUND
I. Defendant’s section 1170.95 petition
On April 22, 2019, defendant, through counsel, filed a
petition to be resentenced pursuant to section 1170.95. He
averred that an information was filed against him that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine;
he was convicted of second degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine;
and he could not now be convicted of murder because of changes
made to sections 188 and 189, effective January 1, 2019.
The People opposed the petition, arguing, inter alia, that
defendant was not entitled to relief because there was “more than
sufficient evidence in the record of conviction to sustain a first
degree murder conviction on a felony murder theory and a felony
murder special circumstance.” And, there was more than
sufficient evidence that defendant acted with a conscious
disregard for human life, the mental state required for his second
degree murder convictions.
Defendant filed a reply brief, arguing that he did set forth a
prima facie case for relief. Thus, he requested that the trial court
set a hearing to determine whether to vacate his murder
conviction and resentence him.
II. Trial court’s order denying defendant’s petition
On January 17, 2020, the trial court entertained oral
argument and then denied defendant’s petition. After
summarizing the facts of the crimes (based on evidence from a
codefendant’s trial at which defendant testified), the trial court
concluded that defendant was a major participant who acted with
conscious disregard for life. The trial court explained: “[T]he
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idea that he is not a major participant acting with reckless
disregard is comical because it’s just not true. [¶] And I think, as
the prosecutor said, he could have been convicted as an aider and
abettor. He could have, himself, gotten the death penalty on a
first degree murder conviction. And there’s clearly, clearly more
than enough to support the second degree [murder] convictions.
[¶] He should be counting his lucky stars every day that he is
alive. He is alive and [still] breathing. And four people are dead,
and largely because of his participation in those murders. [¶]
This is one of the most horrible cases that I have ever had, and I
wish that I could get it out of my mind. I wish I could not have
heard the horror and seen the photographs and the suffering of
these people that died. [¶] This case will be with me until I die.
And [defendant] has some time to think about it. [¶] I mean, if
he has been a model prisoner, and he is not really the criminal
that you say, perhaps the Department of Corrections will release
him; I mean, he is eligible for parole by now I would imagine
because this trial was in 2003. So he has done, you know, 15
years. I mean—although the day that he walks out of prison, if
that day ever comes, watch out everybody. Because this is one of
the most dangerous people ever. And he doesn’t have a
conscience at all, and I think I mentioned that before. [¶]
Because how can you participate in this and then, if this is so
horrible that he says, you know, ‘I didn’t sign up for this,’ and he
leaves the house, why doesn’t he do something to save these
people? [¶] Nothing. He does nothing. He continues to assist
these people in getting away, in stealing the things that they
stole and everything. [¶] And there is no way that I find that the
defense has made a prima facie case in this case, so the 1437
petition is denied.”
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DISCUSSION
I. Standard of Review
We review the trial court’s order de novo. (See Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
[application of law to undisputed facts]; A.S. v. Miller (2019) 34
Cal.App.5th 284, 290 [statutory interpretation].)
II. Relevant Law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton).) The statute
applies to persons convicted after trial and to persons who
entered a guilty plea. (§ 1170.95, subd. (a)(2); People v. Sanchez
(2020) 48 Cal.App.5th 914, 919 [“Specifying that section 1170.95
applies to murder convictions both by trial and by guilty plea
clarifies that it does not matter how the murder conviction was
obtained for section 1170.95 to apply”].)
In order to obtain Senate Bill No. 1437 resentencing relief,
the petitioner must proceed sequentially through section
1170.95’s separate steps. (People v. Lewis (2020) 43 Cal.App.5th
1128, 1140 (Lewis), review granted Mar. 18, 2020, S260598; see
also KB Home Greater Los Angeles, Inc. v. Superior Court (2014)
223 Cal.App.4th 1471, 1477 [sequential structure of a statutory
scheme supports interpretation that acts required by the statutes
occur in the same sequence].) First, a defendant must file a
facially sufficient section 1170.95 petition. The petitioner must
aver that he is eligible for relief because (1) an accusatory
pleading was filed against him allowing the prosecution to
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proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; (2) he was convicted
of first or second degree murder; and (3) he could not be convicted
of murder as a result of the recent amendments to sections 188
and 189. (§ 1170.95, subds. (a)(1)-(3), (b)(1)(A).)
The trial court must immediately review the petition and, if
the petitioner is ineligible for resentencing as a matter of law
because of some disqualifying factor, the trial court must dismiss
or deny the petition. (See People v. Verdugo (2020) 44
Cal.App.5th 320, 328–333 (Verdugo), review granted Mar. 18,
2020, S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 57–
58 (Cornelius), review granted Mar. 18, 2020, S260410; Lewis,
supra, 43 Cal.App.5th at p. 1140.)5
However, if the petition is facially sufficient, the petitioner
is entitled to the appointment of counsel, if requested, and the
People may then brief the question of whether the petitioner is
entitled to relief. (§ 1170.95, subd. (c); Lewis, supra, 43
Cal.App.5th at pp. 1139–1140; Verdugo, supra, 44 Cal.App.5th at
pp. 331–332.) In contrast to the first step showing, the trial court
makes the second step determination with the benefit of briefing
and analysis by both parties, thereby permitting the trial court to
undertake more informed analysis concerning a petitioner’s
“entitle[ment] to relief,” relief meaning an evidentiary hearing,
not necessarily entitlement to resentencing. (§ 1170.95, subd. (c);
5 Disqualifying factors, or factors indicating ineligibility,
include, for example, a petitioner who admitted to being the
actual killer (Verdugo, supra, 44 Cal.App.5th at pp. 329–330) or a
petitioner that the jury found was the actual killer (Cornelius,
supra, 44 Cal.App.5th at p. 58).
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Drayton, supra, 47 Cal.App.5th at p. 975.)6 When making this
determination, “the trial court should assume all facts stated in
the section 1170.95 petition are true. [Citation.] The 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 . . . . [I]f 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 conducting an evidentiary hearing . . . 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).” (Drayton, supra, at p. 980; see
also Lewis, supra, 43 Cal.App.5th at p. 1138 [the contents of the
record of conviction defeat a petitioner’s prima facie showing only
when the record “show[s] as a matter of law that the petitioner is
not eligible for relief”].)
6 Although the same type of information from the record of
conviction could result in denial of a petition at either prima facie
step, the two steps are procedurally distinct and should not be
read as a redundancy written into the statute. The statute
contemplates two separate determinations that the trial court
must make at different times during the petition procedure.
(Verdugo, supra, 44 Cal.App.4th at pp. 328–329; but see People v.
Cooper (2020) 54 Cal.App.5th 106, 109, review granted Nov. 10,
2020, S264684 [concluding that the right to counsel attaches
upon the filing of a facially sufficient petition and disagreeing
with Verdugo, supra, at p. 320].)
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Only if the trial court determines that the petitioner has
made a prima facie showing of entitlement to relief must it issue
an order to show cause. (§ 1170.95, subd. (c).)
III. The trial court did not err
The parties agree that defendant made a prima facie
showing of eligibility. After all, he filed a section 1170.95 petition
averring that (1) an information had been filed against him
allowing the prosecution to proceed under a theory of murder
under the felony murder rule or the natural and probable
consequences doctrine; (2) he was convicted of second degree
murder; and (3) he could not now be convicted of murder
following the amendments to sections 188 and 189. And,
according to the People on appeal, after an examination of the
record and briefing by both parties, there was no evidence to
indisputably show that, as a matter of law, defendant was
ineligible or not entitled to relief.
We are not convinced by the parties’ position. Rather, we
conclude that the trial court’s analysis was correct and that
defendant did not demonstrate a prima facie showing of either
eligibility or entitlement to resentencing relief.
The trial court denied defendant’s petition on the grounds
that defendant was a major participant who acted with reckless
disregard in the commission of the horrific murders. Given the
horrendous facts in this case, this was the only conclusion to be
reached.7 There is ample evidence that defendant was a major
7 We reach this conclusion even without the aid of jury
instructions, verdict forms, or pretrial motions that would have
assisted us in discerning under what exact theory defendant
would have been prosecuted, or under what theory his counsel
advised him to plead guilty to second degree murder.
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participant in the crimes and acted with reckless indifference to
human life as those phrases are defined under People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.
(§ 189, subd. (e)(3).) At both the preliminary hearing and Victor’s
trial, defendant admitted his participation in the crimes. He
testified that he was at the Kumar home and participated in the
tying up of the victims. And, at Victor’s trial, he admitted that he
poured flammable liquid in the master bedroom. (See People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1167 [the defendant’s
“murder conviction after a guilty plea should not be accorded less
weight and finality than a murder conviction after a jury trial, as
the transcripts from the preliminary and plea hearings
demonstrate [that the defendant] was convicted of second degree
murder as a direct aider and abettor”]; People v. Garcia (2020) 46
Cal.App.5th 123, 148 [“Presence at the scene of the murder is a
particularly important aspect of the reckless indifference inquiry”
and “[a] law-abiding person in [the defendant’s] position would
have perceived that beating, binding, and gagging [the victim]
with duct tape created a grave danger to his life, and [the
defendant] knowingly and actively participated in this prolonged
robbery in disregard of that risk”].)
Certainly defendant stated that he left the home before his
coperpetrators set the house on fire. But defendant leaving the
Kumar home in what seems to have been moments before four
people were asphyxiated and/or burned to death does not defeat
the conclusion that he was a major participant in the crimes and
acted with reckless indifference to human life. He had already
set the victims up to be murdered by tying them up and pouring a
flammable liquid in the house. And, if he was naïve enough not
to realize what was going to come next until he walked out of the
12
house, he could have done something to stop the murders. But,
as the trial court aptly noted, he did nothing to stop the murders;
he did nothing to save four innocent victims. (People v. Clark,
supra, 63 Cal.4th at p. 619 [if a defendant fails to act as a
restraining influence, then the defendant is arguably more at
fault for the resulting murders].) Instead, he helped his
coperpetrators get away and then kept the loot from the robbery.
Notably, “[t]his is not a case . . . where the petitioner
pleaded guilty to a felony murder based on a robbery, and an
evidentiary hearing under section 1170.95, subdivision (d) was
necessary to determine whether the petitioner could be convicted
of felony murder in light of the changes to section 189,
subdivision (e)(3), as a major participant in the underlying felony
who acted with reckless indifference to human life.” (People v.
Nguyen, supra, 53 Cal.App.5th at p. 1167, distinguishing
Drayton, supra, 47 Cal.App.5th at p. 981.) There is no mention in
the appellate record or in defendant’s appellate briefs that
defendant could be found guilty of some less serious crime than
murder. (People v. Nguyen, supra, at p. 1167.) “And it would be
speculative for his counsel or this court to suggest such a crime at
this stage.” (Ibid.)
Under these atrocious circumstances, defendant has not
demonstrated a prima facie showing that would entitle him to an
evidentiary hearing.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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