People v. Kane CA2/5 ( 2021 )

Filed 1/19/21 P. v. Kane CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304451
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. LA062376)
v.
MICHAEL DAVID KANE,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Joseph A. Brandolino, Judge. Reversed and
remanded.
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Scott A. Taryle and
Michael R. Johnsen, Supervising Deputy Attorneys General,
for Plaintiff and Respondent.
__________________________
Defendant and appellant Michael David Kane appeals
from the trial court’s postjudgment order denying his
petition for resentencing pursuant to Penal Code section
1170.951 and Senate Bill No. 1437 (Senate Bill 1437).
Section 1170.95 provides for vacatur of a murder conviction
obtained under either the natural and probable
consequences doctrine or the felony murder theory of
liability, if the defendant was not the actual killer, did not
intend to kill, and was not a major participant in an
underlying felony who acted with reckless disregard for
human life. (People v. Martinez (2019) 31 Cal.App.5th 719,
723.)
Kane contends the trial court erred by summarily
denying his petition on the basis that substantial evidence
supported the theory that he intended to kill the victim and
was therefore ineligible for relief as a matter of law.
We reverse and remand to the trial court for further
proceedings.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS AND PROCEDURAL HISTORY2
The Murder
“On Monday, June 15, 2009, Jamie Rainer contacted
appellant Kane on behalf of her housemate, Esteban Arraya,
who wished to purchase marijuana. Kane was suspicious of
Arraya, but agreed to help after Rainer said that she trusted
Arraya. Ultimately, Diane Vigil, another of Rainer’s
housemates, drove Arraya to a Jack in the Box and met up
with Abraham Nunez, as arranged by Kane. They were
accompanied by Kane’s housemate Sandy Motta. Nunez
provided Arraya with marijuana and was almost
immediately arrested by police. Vigil and Arraya were also
arrested. Motta had stepped out of the car during the
transaction and was not arrested.
“Kane blamed Arraya, Rainer, Vigil and Motta for
Nunez’s arrest. Kane gathered some friends, including
appellants Herrera and Hernandez and codefendant Paul
Marino. The men hit and threatened Rainer and Vigil to get
them to provide bail money for Nunez. Motta was also
expected to provide bail money. The women did provide
some money the next day, and Arraya provided a car stereo
in lieu of money.
2We take judicial notice of this court’s prior
unpublished opinion in People v. Hernandez (Nov. 4, 2011,
B224527) (Hernandez), from which the facts are drawn.
3
“On June 18, 2009, Kane and Herrera went to a house
on Kelvin Avenue which was occupied by Arraya, Vigil,
Rainer and others. They shot and killed Antonio Araiza, in
the mistaken belief that he was Arraya. They took a laptop
belonging to another resident of the house, Angelina Frias.”
(Hernandez, supra, B224527.)
The Trial
In 2010, Kane and Herrera were convicted of first
degree murder. (§ 187, subd. (a) [count 4]).3 Kane, Herrera,
and Hernandez were also convicted of two counts of extortion
(§ 520 [counts 1 & 2]), in a related incident. (Hernandez,
supra, B224527.)
The trial court found true the allegation that Kane had
suffered a prior serious felony conviction within the meaning
of section 667, subdivision (a)(1) and the three strikes law
(§§ 667, subds. (b)–(i), 1170.12), and the allegation that Kane
and had served a prior prison term within the meaning of
section 667.5, subdivision (b). The trial court sentenced
Kane to a term of 65 years to life in state prison.
(Hernandez, supra, B224527.)
3 The jury found not true the allegation that Herrera
personally used and discharged a firearm in the commission
of the murder within the meaning of section 12022.53,
subdivision (d).
4
The Appeal
On appeal, Kane and Herrera argued that there was
insufficient evidence to support their murder convictions.
(Hernandez, supra, B224527.) The court noted that Herrera
was seen going into the confrontation armed with a gun, and
that Kane was seen with a gun after the shooting. Araiza
was killed by a single gunshot wound to the chest. Kane was
seen carrying a laptop as he and Herrera left the scene. The
men were tried for first degree murder under the alternative
theories that (1) each was a direct perpetrator or an aider
and abettor who acted with premeditation and deliberation,
or (2) they killed Araiza in the commission of the robbery
and were therefore guilty of felony murder. The appellate
court analyzed the sufficiency of the evidence against the
men as identical, because they acted in complete concert and
there was “no reason to believe that the two men had
different intents.” It concluded that “‘the evidence was
consistent with a theory of premeditated and deliberate first
degree murder, with a theory of first degree felony murder,
or with a theory of both, but not with a theory of neither.’
(People v. Sakarias (2000) 22 Cal.4th 596, 627.)” The
appellate court remanded to the trial court with respect to
an issue of attorneys’ fees, and corrected Herrera’s custody
credit, but otherwise affirmed the judgment. (Hernandez,
supra, B224527.)
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Petition for Resentencing
On May 23, 2019, Kane filed a petition for vacatur of
the murder conviction and resentencing under section
1170.95. He utilized a standardized form, and indicated that
he was not the killer, did not act with intent to kill, and was
not a major participant in the underlying robbery who acted
with reckless indifference to human life. He requested that
counsel be appointed to him.
The People filed a response on November 20, 2019,
contending that Kane was ineligible for relief because
although he was tried under dual theories of intent to kill
and felony murder at trial, the court of appeal concluded
there was sufficient evidence to convict Kane of first degree
murder under an intent to kill theory of liability.
The trial court appointed counsel to Kane on June 7,
2019. Counsel did not file a reply pursuant to section
1170.95.
At a hearing on December 16, 2019, the trial court
denied Kane’s section 1170.95 petition, stating: “The
appellate court previously found -- and I think this is part of
the record -- that the court can and should consider if they
first found sufficient evidence to support an inference that
the defendant had the intent to kill when he went to the
house at which the murder occurred and worked with the
codefendant Herrera to accomplish that goal -- that was
specifically upheld. Evidence of that was considered
sufficient by the appellate court -- and that the appellate
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court also found sufficient evidence to support a finding of
the defendant’s premeditation and deliberation. [¶] So,
based on that, I -- I think that the defendant loses. To the
extent that the jury would have convicted him, obviously,
based on intent to kill and on [the] People’s theory of first
degree murder, then, obviously, there’s sufficient evidence.
To the extent that the defendant may have been -- and also
to the extent -- I don’t know if natural and probable
consequences were part of this case, but, even if it were, that
would preclude any argument under that theory, as well. To
the extent that the defendant may have been convicted
under the felony murder theory, clearly, obviously, having
intent to kill and was a major participant, he and the
codefendant Herrera were both equal participants. The
defendant had the gun in his hand at one point, and,
whether or not he was the shooter, it’s the court’s view -- and
I think it’s pretty clear from the evidence -- that he was -- he
was a major participant, along with his codefendant. [¶] So,
in any event, I don’t believe he’s eligible for relief under the
statute. So the motion will be denied.”
Kane timely appealed.
DISCUSSION
On appeal, Kane contends, and the People concede,
that the trial court erred when it found that the appellate
court’s conclusion that the evidence was sufficient to support
a finding that Kane acted with the intent to kill Araiza
7
rendered him ineligible for relief under section 1170.95. We
agree.
Senate Bill 1437 and Section 1170.95
Through section 1170.95, Senate Bill 1437 created a
process by which a defendant convicted of murder under the
natural and probable consequences or felony murder
doctrine can petition to have his or her conviction vacated
and be resentenced. Section 1170.95 initially requires a
court to determine whether a petitioner has made a prima
facie showing that he or she falls within the provisions of the
statute as set forth in subdivision (a), including that “(1) [a]
complaint, information, or indictment 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) [t]he petitioner was
convicted of first degree or second degree murder following a
trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree
murder[, and] [¶] (3) [t]he petitioner could not be convicted of
first or second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.” (See § 1170.95,
subd. (c).)
If it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the
trial court may deny the petition. (People v. Verdugo (2020)
44 Cal.App.5th 320, 323, 329–330 (Verdugo), review granted
8
Mar. 18, 2020, S260493.) A petitioner is ineligible for relief
under section 1170.95 as a matter of law if the record shows
he or she was not convicted of murder. (People v. Larios
(2019) 42 Cal.App.5th 956, 970, review granted Feb. 26,
2020, S259983 [attempted murder]; People v. Turner (2020)
45 Cal.App.5th 428, 438 [manslaughter]; People v. Flores
(2020) 44 Cal.App.5th 985, 993 [same].) A petitioner is also
ineligible if his murder conviction was solely predicated on
the theory that he was the perpetrator or a direct aider and
abettor. (People v. Edwards (2020) 48 Cal.App.5th 666, 674–
675, review granted July 8, 2020, S262481 [actual killer];
People v. Lewis (2020) 43 Cal.App.5th 1128, 1138–1139,
review granted Mar. 18, 2020, S260598 [direct aider and
abettor, jury not instructed on natural and probable
consequences or felony murder theory of liability].)
If, on the other hand, a determination of eligibility
requires an assessment of the evidence concerning the
commission of the petitioner’s offense, “the petitioner is
permitted to proceed to the next stage of review under
section 1170.95, subdivision (c). In that next stage, the trial
court must evaluate . . . whether the facts and circumstances
of the offense(s) prevent the petitioner from making ‘a prima
facie showing that he or she is entitled to relief.’ (§ 1170.95,
subd. (c).)” (People v. York (2020) 54 Cal.App.5th 250, 262
(York), review granted Nov. 18, 2020, S264954.)
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Analysis
Here, the court of appeal concluded Kane’s murder
conviction was supported by substantial evidence because,
regardless of whether the jury reached a first degree murder
verdict on the basis of direct liability or the felony murder
theory of liability, the evidence was sufficient to support the
verdict. There is nothing in the record that indicates which
theory the jury espoused, or whether some jurors relied on
one theory while other jurors relied on the other. Thus we
cannot say, and the appellate court did not hold, that Kane
possessed the intent to kill as a matter of law. Substantial
evidence supports both theories, but at this point in the
proceedings pursuant to section 1170.95 the trial court may
not engage in fact-finding, and Kane is entitled to the benefit
of the doubt. (Verdugo, supra, 44 Cal.App.5th at p. 329
[when evaluating section 1170.95 petitioner’s eligibility
under subdivision (c), the court must make “all factual
inferences in favor of the petitioner”].) Because the record of
conviction does not establish that Kane possessed the intent
to kill as a matter of law, and it does not appear that he is
otherwise ineligible for relief as a matter of law, we reverse
and remand the matter to the trial court to conduct further
proceedings in accordance with the terms of section 1170.95.
(See York, supra, 54 Cal.App.5th at p. 262 [“[w]hen the trial
court cannot determine that the petitioner is ineligible for
relief as a matter of law . . . the petitioner is permitted to
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proceed to the next stage of review under section 1170.95,
subdivision (c)”].)
DISPOSITION
The trial court’s order denying Kane’s resentencing
petition is reversed. We remand for the trial court to
conduct further proceedings in accordance with the terms of
section 1170.95.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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