People v. Reyes CA2/1 ( 2021 )

Filed 1/26/21 P. v. Reyes CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B304108
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA120197)
v.
ALFREDO E. REYES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ray G. Jurado, Judge. Affirmed.
James M. Crawford, 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, Assistant
Attorney General, Charles S. Lee and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Alfredo Reyes challenges the trial court’s summary denial
of his petition for resentencing under Penal Code section
1170.95.1 To be eligible for relief under the statute, a defendant
must make a prima facie case that he was convicted of murder
under the natural and probable consequences doctrine, or of
felony murder in a case in which he either was not a major
participant in the felony or did not act with reckless indifference
to human life. (See People v. Allison (2020) 55 Cal.App.5th 449,
460-462, review denied Dec. 23, 2020, S265450 (Allison); People v.
Galvan (2020) 52 Cal.App.5th 1134, 1139-1140, review granted
Oct. 14, 2020, S264284 (Galvan).)
Reyes contends the trial court erred in denying his petition
because he established a prima facie case for relief by alleging he
was not the actual killer and was prosecuted as an aider and
abettor to felony murder. We disagree and affirm.
At Reyes’s 1997 trial, the jury found true a felony murder
special circumstance allegation under section 190.2, subdivision
(a)(17), which required proof of the same elements that all felony
murder charges must meet under current law. Therefore, Reyes
is ineligible for resentencing under section 1170.95 as a matter of
law. Reyes’s remaining arguments are without merit.
FACTUAL AND PROCEDURAL SUMMARY
In an unpublished opinion involving Reyes’s direct appeal
(People v. Reyes (June 29, 1998, B114256)), we described the facts
of the case as follows.
“At about 11:30 p.m. on August 2, 1995, Reyes and a cohort
entered the Club Casbah bar and told those present, ‘This is a
1 Subsequent statutory references are to the Penal Code.
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robbery, everyone down on your knees, give me all your money.’
Reyes then fired a rifle, wounding an employee (Priscilla
Villalobos), who fell to the floor. Robert Hirtle (a patron) saw
Reyes point his rifle toward the ceiling and saw Villalobos fall.
Hirtle, his eye on Reyes (who was wearing a baseball cap
backwards and a bandanna covering the lower part of his face),
put his wallet on the bar, then continued to watch as Reyes took
money from two other patrons while Reyes’s cohort went to the
cash register. When the perpetrators left, one was overheard
telling the other, ‘you should have fucking shot them all.’ An
expended .22-caliber casing was found at the scene.
“At about 1:45 a.m. on August 5, Reyes and a cohort
entered the Kopper Keg. Olga Gutierrez (an employee who was
behind the bar) heard gunshots, looked up, and saw two men
with their faces partially covered. While the man with the rifle
stayed at the entrance, Reyes (gun in hand) approached
Gutierrez, said it was a robbery, and asked for the money in the
cash register. When Gutierrez told him to take the money
himself, Reyes threatened to kill her, then shot her in the arm.
Reyes then jumped over the bar, grabbed another employee
(Joaquin Lopez) by the shirt, put his gun to the back of Lopez’s
neck, and told Lopez to open the cash register. Lopez complied,
and Reyes took $80, then jumped back over the bar. Gutierrez
heard another shot and saw Antonia Gonzalez fall (she died at
the scene from a single gunshot wound). Five .22-caliber casings
were found at the scene.
“At about 8:20 p.m. on August 5, Reyes and Anthony
Rognlie entered Topper’s Bar. Reyes quickly approached Jose
Guarderas (the bartender), jumped over the bar, took out a
handgun, pointed it at Guarderas, and took money from the cash
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register. Rognlie, with a bandana on his head and a .22-caliber
rifle in his hand, told everyone to get down. John Kowalski (a
customer) saw Rognlie holding the rifle and also saw the culprits
run out together.
“Reyes was identified by Hirtle (at a photo lineup) as one of
the perpetrators at the Club Casbah, by Guarderas (at a live
lineup) as one of the perpetrators at Topper’s, and by Gutierrez
(following a live lineup) as resembling one of the perpetrators at
the Kopper Keg. . . . At trial, the People presented evidence of
the facts summarized above, plus evidence that Reyes and
Rognlie lived at separate locations in the vicinity of the Club
Casbah, and that the three bars were located within three miles
of each other. A criminalist testified that the casings recovered
at the Club Casbah and the Kopper Keg were fired from the same
firearm. Hirtle and Guarderas identified Reyes with certainty,
and Gutierrez testified that Reyes ‘resemble[d]’ one of the
robbers.” (People v. Reyes, supra, B114256.)
In 1997, a jury convicted Reyes of murder (§ 187, subd. (a)),
three counts of robbery (§ 211), and two counts of assault with a
firearm (§ 245, subd. (a)(2)). The jury also found true the special
circumstance allegation that the murder was committed during
the commission of a robbery (§ 190.2, subd. (a)(17)).
The verdict form indicates the jury found Reyes guilty of
murder, but it did not include a finding that the crime was first
or second degree murder. The prosecutor conceded this was a
drafting error. As a result, the murder was deemed to be second
degree murder by operation of law. (See § 1157.) The trial court
sentenced Reyes to 15 years to life for second degree murder, plus
38 years on the remaining charges.
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We affirmed the conviction. Our decision did not address
any issues related to the special circumstance finding.
In March 2019, Reyes petitioned for resentencing under
section 1170.95. He alleged that he was prosecuted under a now-
invalidated theory of felony murder. He also requested the
appointment of counsel. On December 16, 2019, on considering a
response filed by the People, and without appointing counsel, the
trial court summarily denied the petition in a brief order that
found Reyes ineligible for resentencing “because he was the
actual killer.”
Reyes timely appealed.
DISCUSSION
A. Senate Bill No. 1437 and Section 1170.95
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.), which eliminated the natural and
probable consequences doctrine in cases of murder, and limited
the application of the felony-murder doctrine. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020,
S260493 (Verdugo).) The legislation also enacted section 1170.95,
which provides a vehicle for persons who were convicted of
murder pursuant to a now-invalidated theory to petition to have
their conviction vacated and to be resentenced. (Ibid.; see
§ 1170.95, subd. (a).)
A person convicted of felony murder may petition the trial
court for resentencing “when all of the following conditions apply:
[¶] (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) The petitioner was
convicted of first degree or second degree murder following a trial
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or accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder. [¶]
(3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a), italics added.)
To obtain relief, a defendant must file a declaration
affirming that he is eligible for resentencing under the new law.
(See § 1170.95, subd. (b)(1).) The trial court considers the
petition according to a three-step process. First, the court
“review[s] the petition and determine[s] if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section.” (§ 1170.95, subd. (c).) This is “a
preliminary review of statutory eligibility for resentencing,” akin
to an initial review of a petition for resentencing under
Propositions 36 and 47. (Verdugo, supra, 44 Cal.App.5th at
p. 329.) “The court’s role at this stage is simply to decide whether
the petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner.” (Ibid.)
If the petition survives this first stage of review, the court
must appoint counsel if the petitioner has so requested.
(§ 1170.95, subd. (c).) The prosecutor then files a response, and
the petitioner may file a reply. The review at this stage “is
equivalent to the familiar decisionmaking process before issuance
of an order to show cause in habeas corpus proceedings, which
typically follows an informal response to the habeas corpus
petition by the Attorney General and a reply to the informal
response by the petitioner.” (Verdugo, supra, 44 Cal.App.5th at
p. 328.) Under this standard, “[i]f the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
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issue an order to show cause” and conduct an evidentiary
hearing. (§ 1170.95, subds. (c) and (d).)
“[I]f the petitioner’s ineligibility for resentencing under
section 1170.95 is not established as a matter of law by the record
of conviction, the court must direct the prosecutor to file a
response to the petition, permit the petitioner (through appointed
counsel if requested) to file a reply and then determine, with the
benefit of the parties’ briefing and analysis, whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330.)
B. Reyes Is Ineligible for Resentencing
Senate Bill No. 1437 amended section 189 to authorize a
conviction for felony murder only if the defendant was the actual
killer, aided and abetted in a first degree murder with the intent
to kill, or was a major participant in the underlying crime who
acted with reckless indifference to human life. (Verdugo, supra,
55 Cal.App.4th at p. 326; see § 189, subd. (e).) “These are
identical to the requirements of a felony-murder special
circumstance now and in 1997” at the time of Reyes’s trial, as
reflected in the instructions received by the jury in his case.
(Allison, supra, 55 Cal.App.5th at p. 457.) Thus, as in Allison,
the special circumstance finding shows as a matter of law that
Reyes still could be convicted of felony murder even under the
newly amended version of section 189, and prevents Reyes from
making a prima facie case that he is eligible for resentencing.
(Ibid.)
Reyes argues that he is eligible for resentencing due to
changes in the law regarding special circumstance allegations. In
2015 and 2016, the California Supreme Court clarified the
circumstances under which a defendant could be deemed a major
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participant in an underlying felony who acted with reckless
indifference to human life. (People v. Clark (2016) 63 Cal.4th 522(Clark); People v. Banks (2015) 61 Cal.4th 788 (Banks).) Reyes
contends that special circumstance findings which predate Banks
and Clark are eligible for resentencing relief under section
1170.95.
We rejected this argument in Galvan and Allison, and
decline to revisit those decisions here. The argument that pre-
Banks/Clark special circumstance findings are not sufficient to
preclude resentencing under section 1170.95 fails because it does
not depend on Senate Bill No. 1437’s changes to the felony-
murder rule. Rather, as we concluded in Galvan and Allison, it
depends on “the clarification of the requirements for the special
circumstance finding in Banks and Clark,” and not “ ‘‘because of
changes’ made by Senate Bill No. 1437.” (Galvan, supra, 52
Cal.App.5th at p. 1142; see § 1170.95, subd. (a)(3); accord,
Allison, supra, 55 Cal.App.5th at p. 458.)
Where, as here, “the prior [special circumstance] finding
shows the petitioner meets the requirements for murder liability
under amended sections 188 and 189, then it is not true that the
petitioner could not be convicted of murder because of the
changes to sections 188 and 189, and the petition must be
denied.” (Allison, supra, 55 Cal.App.5th at pp. 461-462, italics
omitted.)
Reyes next argues that we must disregard the jury’s
robbery special circumstance finding under section 190.2,
subdivision (a)(17), because there was no first degree murder
conviction to which the special circumstance finding lawfully
could attach. The lack of a jury finding of first degree murder
does not by itself demonstrate that Reyes is entitled to
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resentencing under section 1170.95. Reyes was not convicted of
first degree murder due to an error in drafting the verdict form;
not “ ‘because of changes’ made by Senate Bill No. 1437.”
(Galvan, supra, 52 Cal.App.5th at p. 1142.) “By finding a special
circumstance allegation true, the jury ma[de] precisely the same
finding it must make in order to convict a defendant of felony
murder under the new law.” (Id. at p. 1141.) This finding is left
undisturbed and remains valid, even though the trial court was
unable as a matter of law to impose sentence consistent with the
finding. Based on this finding, Reyes could still be convicted of
murder, and thus he is ineligible as a matter of law to have his
murder conviction vacated. (Ibid.; accord, Allison, supra, 55
Cal.App.5th at p. 457.)
Finally, Reyes argues we must reverse because the trial
court based the denial of his petition on its erroneous finding that
he was the “actual killer.” He notes that our opinion on direct
appeal did not determine the identity of the actual killer, but
rather inferred it was not Reyes. He also references our decision
on direct appeal by his codefendant, Rognlie, in which we stated
that an “unidentified man shot and killed Antonia Gonzales.”
(People v. Rognlie (June 29, 1998, B115889) [nonpub. opn.].)
We need not decide whether the trial court erred in finding
that Reyes was the actual killer. “ ‘ “ ‘[A] ruling or decision, itself
correct in law, will not be disturbed on appeal merely because
given for a wrong reason. If right upon any theory of the law
applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its
conclusion.’ [Citation.]” [Citation.]’ [Citation.]” (People v.
Smithey (1999) 20 Cal.4th 936, 972.) Because Reyes’s petition
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was correctly denied for the reasons explained above, this
argument fails.
C. Appointment of Counsel
Reyes also argues the trial court’s failure to appoint counsel
is structural error that requires reversal because a petitioner
under section 1170.95 is entitled to the appointment of counsel
once the trial court asks for briefing from the People. (See
Verdugo, supra, 44 Cal.App.5th at p. 330 [“if the petitioner’s
ineligibility for resentencing under section 1170.95 is not
established as a matter of law by the record of conviction, the
court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to
file a reply and then determine, with the benefit of the parties’
briefing and analysis, whether the petitioner has made a prima
facie showing he or she is entitled to relief”]; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020,
S260598 [the requirement to appoint counsel arises “after the
court determines that the petitioner has made a prima facie
showing that [the] petitioner ‘falls within the provisions’ of the
statute, and before the submission of written briefs and the
court’s determination whether [the] petitioner has made ‘a prima
facie showing that he or she is entitled to relief’ ”].)
While we agree with Reyes that the trial court should have
appointed counsel after it asked for briefing from the People, we
do not agree that it amounts to structural error. Rather, the trial
court’s failure to appoint counsel after accepting briefing from the
People and prior to the issuance of an order to show cause is
subject to review for harmless error. (See People v. Daniel (2020)
57 Cal.App.5th 666, petn. for review pending, petn. filed Dec. 29,
2020, S266336; People v. Law (2020) 48 Cal.App.5th 811, 826,
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review granted July 8, 2020, S262490.) Here, the trial court’s
error was “harmless under any standard of review.” (People v.
Edwards (2020) 48 Cal.App.5th 666, 675, review granted July 8,
2020, S262481, citing Chapman v. California (1967) 386 U.S. 18,
24 [87 S.Ct. 824, 17 L.Ed.2d 795] [constitutional error] and People
v. Watson (1956) 46 Cal.2d 818, 836 [state law error]; see also
Daniel, supra, at p. 678 [applying harmless error standard under
Watson]; Law, supra, at p. 826 [applying harmless beyond a
reasonable doubt standard under Chapman].) Had counsel been
appointed below, the result would be no different. As noted ante,
Reyes failed to demonstrate eligibility under the statute.
Moreover, “[h]is arguments contesting that failure have all been
fairly presented by his appellate counsel, and an appellate record
preserved.” (People v. Swanson (2020) 57 Cal.App.5th 604, 618,
petn. for review pending, petn. filed Dec. 24, 2020, S266262.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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ROTHSCHILD, P. J. BENDIX, J.
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