People v. Silva CA5 ( 2022 )

Filed 4/28/22 P. v. Silva CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080879
Plaintiff and Respondent,
(Super. Ct. No. CRM036247A)
v.
HELIODORO ARREOLA SILVA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Jeanne
Schechter, Judge.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christina H.
Simpson and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.
INTRODUCTION
In 2016, a jury convicted petitioner Heliodoro Arreola Silva with the first degree
murder of Rodolfo B.1 (Pen. Code,2 §§ 187, subd. (a), 189; count 1) and the first degree
murder of Reyes B. (§§ 187, subd. (a), 189; count 2).3 For both counts, the jury found
true the special circumstance that petitioner committed multiple murders and committed
the murders during the commission or attempted commission of a kidnapping (§ 190.2,
subd. (a)(3), (a)(17)(B)). For each murder, the court imposed consecutive life sentences
without the possibility of parole plus an additional one-year term for a firearm
enhancement. (People v. Silva (Aug. 7, 2019, F074899) [nonpub. opn.] (Silva).)
In 2019, petitioner filed a petition for resentencing on his murder convictions
pursuant to section 1170.95. The court summarily denied the petition at the prima facie
stage on the ground Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437)
is unconstitutional and, alternatively, the special circumstance findings established
petitioner either aided and abetted in the murders with the intent to kill or that he was a
major participant in the underlying felony and acted with reckless indifference to human
life, both disqualifying factors pursuant to section 1170.95, subdivision (a)(3).
On appeal, petitioner contends the trial court violated his due process rights by
failing to appoint counsel and not giving him the opportunity to brief the issues before
denying his petition at the prima facie stage. Petitioner further contends he made a prima
facie showing he is entitled to resentencing relief pursuant to section 1170.95 and that the
trial court erred in summarily denying his petition. Additionally, petitioner contends that
with the passage of Senate Bill No. 1437, the special circumstance statute no longer
1Pursuant to California Rules of Court, rule 8.90, we refer to some persons by
their first names. No disrespect is intended.
2 All further statutory references are to the Penal Code unless otherwise specified.
3 Petitioner was convicted of additional offenses and enhancements, as described
below.
2.
performs a narrowing function, as required by the Eighth Amendment to the federal
Constitution, because every person who is convicted of first degree felony murder would
now be eligible for the death penalty. Finally, petitioner contends the trial court violated
his right to due process and to counsel by ruling on the constitutionality of Senate Bill
No. 1437 without appointing counsel and providing an opportunity for briefing and, in
any event, the trial court’s ruling was erroneous.
We conclude the court erred both in failing to appoint counsel and in not giving
petitioner an opportunity to brief the merits of the petition, but the errors were harmless
because the special circumstance findings establish petitioner is ineligible for
resentencing as a matter of law. Moreover, we conclude that Senate Bill No. 1437 does
not violate the Eighth Amendment to the federal Constitution because it does not broaden
the class of individuals eligible for the death penalty. Finally, we conclude petitioner’s
remaining contentions with regard to the constitutionality of Senate Bill No. 1437 are
moot. Accordingly, we affirm the trial court’s order denying resentencing relief pursuant
to section 1170.95.
FACTUAL AND PROCEDURAL BACKGROUND
We recite the brief summary of facts from our nonpublished opinion in petitioner’s
direct appeal.4
“As retribution for an alleged theft of marijuana from a marijuana
growing operation, a group of men [including petitioner] seized two victims
[Rodolfo and Reyes], bound them, transported them to an orchard,
murdered them there, placed their bodies inside a car, and incinerated them
by setting fire to the car.” (Silva, supra, F074889.)
On October 19, 2016, the Merced County District Attorney filed a first amended
information charging petitioner with the first degree murders of Rodolfo (§§ 187,
4 We provide these facts for background purposes because they were cited by both
parties in their briefs. However, we do not rely on these facts in resolving the issues
presented in this appeal. (See § 1170.95, subd. (d)(3).)
3.
subd. (a), 189; count 1) and Reyes (§§ 187, subd. (a), 189; count 2) with the special
circumstances petitioner was convicted of more than one offense of murder in the first or
second degree (§ 190.2, subd. (a)(3)) and that the offenses were committed during the
commission or attempted commission of a kidnapping (§ 190.2, subd. (a)(17)(B)), along
with an enhancement that one of the principals was armed with a firearm (§ 12022,
subd. (a)(1)); the kidnapping of Rodolfo (§ 207, subd. (a), count 3) with two firearm
enhancements (§§ 12022, subd. (a)(1), 12022.53, subd. (b)) and the kidnapping of Reyes
(§ 207, subd. (a), count 4) with two firearm enhancements (§§ 12022, subd. (a)(1),
12022.53, subd. (b)).
On November 4, 2016, a jury convicted petitioner of two counts of first degree
murder (§§ 187, subd. (a), 189; counts 1, 2), and two counts of kidnapping (§ 207,
subd. (a); counts 3, 4). As to the first degree murder convictions, the jury found true the
special circumstances that petitioner had been convicted of more than one offense of
murder in the first or second degree (§ 190.2, subd. (a)(3)) and that the murders were
committed while the petitioner was engaged in, or was an accomplice in, the commission
of, or attempted commission of a kidnapping (§ 190.2, subd. (a)(17)(B)), along with the
enhancement that during the commission of the offense one of the principals was armed
with a firearm (§ 12022, subd. (a)(1)). As to the kidnapping convictions, the jury found
true that during the commission of the offense one of the principals was armed with a
firearm (§ 12022, subd. (a)(1)).5
On December 8, 2016, the trial court sentenced petitioner on count 1 to a term of
life without the possibility of parole with an additional one-year term for the firearm
enhancement (§ 12022, subd. (a)(1)). On count 2, the trial court sentenced petitioner to a
second consecutive term of life without the possibility of parole with an additional one-
5 As to counts 3 and 4, the jury found not true the enhancement that petitioner
personally used a firearm during the commission of the kidnappings (§ 12022.53,
subd. (b)).
4.
year term for the firearm enhancement (§ 12022, subd. (a)(1)). On count 3, the trial court
sentenced petitioner to a consecutive term of eight years with an additional one-year term
for the firearm enhancement (§ 12022, subd. (a)(1)). On count 4, the trial court sentenced
petitioner to a consecutive term of five years with an additional one-year term for the
firearm enhancement (§ 12022, subd. (a)(1)).
On appeal, this court modified the judgment by striking a parole revocation
restitution fine (§ 1202.45) and affirmed the judgment as modified. (Silva, supra,
F074889.)
On December 31, 2019, petitioner, in propria persona, filed a petition for
resentencing on his murder convictions pursuant to section 1170.95. In the form petition,
petitioner stated a complaint, information, or indictment was filed against him that
allowed him to be prosecuted under a theory of felony murder or murder under the
natural and probable consequences doctrine and that he was convicted of first or second
degree murder at trial. Petitioner also requested the court appoint counsel during the
resentencing process and stated that he was not the actual killer; did not, with the intent to
kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree; that the murder victim was not a peace officer
acting in the performance of his or her duties; and that there was a prior determination by
the court or jury that found that he was not a major participant and/or did not act with
reckless indifference to human life under section 190.2, subdivision (d).
On January 21, 2020, the trial court, without appointing counsel or receiving
further briefing by either party, denied the petition on the ground that Senate Bill
No. 1437 unconstitutionally amends Propositions 7 and 115. The trial court continued by
stating that even if Senate Bill No. 1437 is constitutional, petitioner is ineligible for relief
because:
“[T]he record is clear that even though petitioner was not the actual
killer, he, with the intent to kill, aided, abetted, counseled, commanded,
5.
induced, solicited, requested, or assisted the actual killer in the commission
of the murder in the first degree, and/or he was a person who acted as a
major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of section 190.2.
This is clear because the jury found the kidnapping special circumstances
allegation to be true. The jury could only find this true if they found
petitioner either aided and abetted in the murder with the intent to kill, or he
was a major participant in the underlying felony and acted with reckless
indifference to human life.”
A timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend
the felony murder rule and the natural and probable consequences doctrine . . . 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).) The bill
accomplished this task by adding three separate provisions to the Penal Code. (People v.
Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable
consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a
principal to act with malice aforethought before he or she may be convicted of murder.
(§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-
murder rule, the bill added section 189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
6.
indifference to human life, as described in subdivision (d) of Section
190.2.”6 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added section 1170.95 to provide a procedure for those convicted of a
qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile,
at p. 843.) This procedure is available to persons convicted of “felony murder or murder
under the natural and probable consequences doctrine or other theory under which malice
is imputed to a person based solely on that person’s participation in a crime, attempted
murder under the natural and probable consequences doctrine, or manslaughter.”
(§ 1170.95, subd. (a).)
“Section 1170.95 lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine[;]
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord,
People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
6Additionally, section 189 was amended to allow for felony-murder liability
where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)
7.
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response
and the petitioner may file a reply. The trial court must then hold a hearing to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making
this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-
971.) The record of conviction includes, but is not limited to, jury instructions, verdict
forms, and a prior appellate opinion. (See generally id. at p. 972.) However, the prima
facie inquiry is limited and, at this stage of the proceedings, the court “should not engage
in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at
pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the
petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord,
§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd.
(d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet
their respective burdens. The admission of evidence at the hearing is governed by the
Evidence Code. However, the court also “may consider evidence previously admitted at
any prior hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural
history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).)
8.
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
of section 872 is inadmissible at the evidentiary hearing, unless made admissible by
another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent the error(s), his or her petition would not have been summarily denied
without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v.
Watson (1956) 46 Cal.2d 818, 836.)
II. Analysis
Petitioner contends the trial court violated his due process rights by failing to
appoint counsel and not giving him the opportunity to brief the issues before denying his
petition at the prima facie stage. Petitioner further contends he made a prima facie
showing he is entitled to resentencing relief pursuant to section 1170.95 and that the trial
court erred in summarily denying his petition. Petitioner further contends that with the
passage of Senate Bill No. 1437 the special circumstance statute no longer performs a
narrowing function, as required by the Eighth Amendment to the federal Constitution,
because every person who is convicted of first degree felony murder would now be
eligible for the death penalty. Finally, petitioner contends the trial court violated his right
to due process and to counsel by ruling on the constitutionality of Senate Bill No. 1437
without appointing counsel and providing an opportunity for briefing and, in any event,
the trial court’s ruling was erroneous.
We conclude the trial court erred in failing to appoint counsel and not providing
petitioner an opportunity to brief the merits of the petition, but conclude the error was
harmless because the special circumstance findings establish petitioner is ineligible for
resentencing as a matter of law. Moreover, we conclude that Senate Bill No. 1437 did
not broaden the class of individuals eligible for the death penalty and therefore does not
run afoul of the Eighth Amendment to the federal Constitution. Finally, we conclude
9.
petitioner’s remaining contentions with regard to the constitutionality of Senate Bill
No. 1437 are moot.
A. The Trial Court Erred in Failing to Appoint Counsel and Not Providing
Petitioner an Opportunity to Brief the Merits of the Petition.
Petitioner contends the trial court erred in disposing of his section 1170.95 petition
without the benefit of briefing, argument, or the assistance of counsel. Since the filing of
both parties’ briefs, Senate Bill No. 775 (2021-2022 Reg. Sess.) went into effect
requiring that, “[u]pon receiving a petition in which the information required . . . is set
forth or a petition where any missing information can readily be ascertained by the court,
if the petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner.”7 (§ 1170.95, subd. (b)(C)(3); see Lewis, supra, 11 Cal.5th at pp. 962-963,
967.)
The trial court did not follow this procedure in the instant case. Section 1170.95,
subdivisions (b) and (c) now require that at the prima facie stage the trial court appoint
counsel and give counsel an opportunity to file responsive briefing. The trial court erred
in disposing of the petition without complying with these procedures. We may affirm
only if petitioner was not prejudiced by the error. (Lewis, supra, 11 Cal.5th at pp. 972-
974; see People v. Watson, supra, 46 Cal.2d at p. 836.) As we explain, we conclude
7 As it relates to petitioner’s due process rights, our Supreme Court has held, “a
petitioner is not constitutionally entitled to counsel at the outset of the subdivision (c)
stage of the section 1170.95 petitioning process” and a “trial court’s failure to appoint
counsel . . . [is] state law error only.” (Lewis, supra, 11 Cal.5th at p. 973.) Moreover, the
initial section 1170.95 prima facie determination involves a question of law and thus can
be made outside the presence of petitioner without a formal hearing, and off the record.
(People v. Perry (2006) 38 Cal.4th 302, 312 [“[A] defendant may ordinarily be excluded
from conferences on questions of law, even if those questions are critical to the outcome
of the case, because the defendant’s presence would not contribute to the fairness of the
proceeding.”].) Therefore, petitioners due process rights were not violated at the prima
facie stage when he was denied both counsel and a formal hearing.
10.
petitioner cannot demonstrate prejudice because the jury’s special circumstance findings
establish he is ineligible for resentencing as a matter of law.
B. Petitioner was not Prejudiced by the Trial Court’s Errors.
As stated, the trial court erred in disposing of the section 1170.95 petition without
the benefit of briefing, argument, or the assistance of counsel, and we therefore may
affirm only if petitioner was not prejudiced by the errors. We conclude petitioner cannot
demonstrate prejudice because the record establishes he is ineligible for resentencing as a
matter of law. (See Lewis, supra, 11 Cal.5th at pp. 972-974; see also People v. Watson,
supra, 46 Cal.2d at p. 836.)
i. The special circumstance findings are dispositive.
To be eligible for relief pursuant to section 1170.95, petitioner must not have been
the actual killer, must not have acted with the intent to kill or malice aforethought, and
must not have been a major participant in the underlying felony who acted with reckless
indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3);
see Gentile, supra, 10 Cal.5th at p. 842.) Here, as to both murder counts, the jury found
true the kidnapping special circumstance (§ 190.2, subdivision (a)(17)(B), (M)). To find
this special circumstance true, the jury was required to find petitioner acted with intent to
kill, whether as the actual killer or an aider and abettor. (§ 190.2, subd. (a)(17)(M).)8
Therefore, the true findings on the kidnapping special circumstance allegations establish
8 The multiple-murder special circumstance also generally requires a finding of
intent to kill when the perpetrator is not the actual killer. (§ 190.2, subds. (a)(3), (c).)
Here, however, the jury was not specifically instructed that it had to find petitioner
intended to kill in order to find the multiple-murder special circumstances true. In
petitioner’s direct appeal, we concluded the instruction therefore was improper, but
harmless beyond a reasonable doubt in light of the kidnapping special circumstance
findings. (Silva, supra, F074899.) Regardless, we do not consider the effect of the
multiple-murder special-circumstance finding on petitioner’s resentencing eligibility
because the true findings on the kidnapping special circumstances independently render
petitioner ineligible for resentencing as a matter of law.
11.
the jury made the requisite findings necessary to sustain a murder conviction under the
law, as amended by Senate Bill No. 1437.
Nevertheless, petitioner contends the “[s]pecial circumstance findings alone do not
establish as a matter of law that [petitioner] had intent to kill and/or was a major
participant in the underlying felony and acted with reckless indifference to human life”
because the jury instructions did not require the jury to find he aided and abetted in the
murder with intent to kill.9 We reject this proposition. Section 1170.95 provides a
mechanism for resentencing individuals whose convictions are no longer valid due to
changes to sections 188 and 189. (§ 1170.95, subd. (a)(3).) It does not provide a
mechanism for challenging a jury’s prior factual findings. (People v. Allison (2020) 55
Cal.App.5th 449, 461.) “The purpose of section 1170.95 is to give defendants the benefit
of amended sections 188 and 189 with respect to issues not previously determined, not to
provide a do-over on factual disputes that have already been resolved.” (Ibid.) In other
circumstances, this court has declined to utilize the section 1170.95 procedure to examine
9 Petitioner also contends there is nothing in the record to establish that the jury
instructions complied with the requirements of People v. Banks (2015) 61 Cal.4th 788and People v. Clark (2016) 63 Cal.4th 522. In these cases, our Supreme Court
“ ‘clarified “what it means for an aiding and abetting defendant to be a ‘major
participant’ in a crime who acted with a ‘reckless indifference to human life.’ ” ’ ”
(People v. Gomez (2020) 52 Cal.App.5th 1, 13, fn. 5, review granted Oct. 14, 2020,
S264033.) “Courts of Appeal are split on the question of whether a special circumstance
finding entered prior to Banks and Clark renders a petitioner ineligible for section
1170.95 resentencing relief as a matter of law [citation], and our Supreme Court has
granted review to decide the issue (People v. Strong (Dec. 18, 2020, C091162) [nonpub.
opn.], review granted Mar. 10, 2021, S266606).” (People v. Simmons (2021) 65
Cal.App.5th 739, 747, review granted Sept. 1, 2021, S270048.) Here, petitioner’s jury
was not asked to find he was a major participant who acted with reckless indifference to
human life, but rather whether he possessed an intent to kill, and thus the split of
authority does not affect his eligibility for resentencing. (See § 190.2, subd. (a)(17)(M).)
Regardless, this court has held that a pre-Banks/Clark special circumstance finding
renders a petitioner ineligible for resentencing pursuant to section 1170.95 as a matter of
law. (Simmons, at p. 749.)
12.
the record of conviction to determine whether a special circumstance finding was
properly entered. (People v. Simmons, supra, 65 Cal.App.5th at p. 749.) Rather, this
court has concluded that such findings are binding on the issues necessarily decided by
the jury, unless the findings were invalidated on direct appeal or in a habeas proceeding.
(Ibid.) Therefore, the special circumstance findings establish that petitioner is ineligible
for resentencing as a matter of law. He therefore was not prejudiced by the court’s errors
in denying him the benefit of briefing, argument, or the assistance of counsel.
ii. The record of conviction regarding the special circumstance
allegation supports the jury’s finding that petitioner had the intent to
kill.
However, even if we were inclined to look behind the jury’s verdict, we disagree
with petitioner the record of conviction does not establish petitioner aided and abetted in
the murder with intent to kill. The jury was expressly instructed on the elements of the
kidnapping special circumstance allegation, which required a finding that petitioner aided
and abetted the murder with intent to kill, and by finding the special circumstance true the
jury made the requisite findings necessary to sustain a murder conviction under the
amended law.10 (See People v. Odom (2016) 244 Cal.App.4th 237, 256-257 [these
10 The jury instructions from petitioner’s trial are not contained in the record on
appeal. However, in petitioner’s direct appeal, this court found that “[f]or the felony
murder (kidnapping) special circumstance, the [trial] court gave one instruction,
CALCRIM No. 731.” (Silva, supra, F074889.) “As given in [petitioner’s] case,
CALCRIM No. 731 stated that to prove the kidnapping special circumstance, the
prosecution had to establish that the defendant intentionally committed, aided and
abetted, or was a member of a conspiracy to commit kidnapping; that the defendant did
an act that was a substantial factor in causing the death; and that the defendant intended
the victim to be killed.” (Ibid.) More generally, CALCRIM No. 731 (Special
Circumstances: Murder in Commission of Felony – Kidnapping With Intent to Kill
(After March 8, 2000) (§ 190.2, subd. (a)(17)) is as follows:
“1. The defendant (committed [or attempted to commit][,]/[or] aided and
abetted[,]/[or] was a member of a conspiracy to commit) kidnapping;
13.
instructions “require[] [an] intent to kill and cannot be proven by reckless indifference to
human life by a major participant in the kidnapping.”].)
Nonetheless, petitioner contends our prior opinion establishes the jury may have
improperly convicted him of first degree murder, under the felony-murder rule or natural
and probable consequences doctrine, without finding he aided and abetted in the murder
with intent to kill. In Silva, this court found several errors in the jury instructions.
Relevant here, the court concluded the trial court erred in giving CALCRIM No. 548,
which allowed the jury to convict petitioner of murder without unanimously agreeing on
the specific theory of murder. (Silva, supra, F074899.) This court found the instruction
erroneous because the jury was presented with several different theories of murder,
including felony murder and murder under the natural and probable consequences
doctrine, and some of those theories could only support a conviction for second degree
murder. However, the CALCRIM No. 548 instruction erroneously allowed the jury to
convict petitioner of murder without a unanimous decision as to the degree of murder.
This left open the possibility that the jury erroneously convicted petitioner of first degree
“2. The defendant (intended to commit[,]/[or] intended to aid and abet the
perpetrator in committing[,]/[or] intended that one or more of the
members of the conspiracy commit) kidnapping;
“[3. If the defendant did not personally commit [or attempt to commit]
kidnapping, then another perpetrator, (whom the defendant was aiding
and abetting/[or] with whom the defendant conspired), personally
committed [or attempted to commit] kidnapping;]
“(3/4). (The defendant/ ___________ ) did an act that was a substantial factor
in causing the death of another person;
“AND
“(4/5). The defendant intended that the other person be killed.” (Italics added.)
14.
murder under the natural and probable consequences doctrine without a finding of an
intent to kill. (Silva, supra, F074889; see People v. Chiu (2014) 59 Cal.4th 155, 166.)
This court found this error, as well as other errors in the instructions on the mental
state of an aider and abettor, implied malice as it pertains to conspiracy, and the mental
state for the multiple-murder special circumstance, to be harmless beyond a reasonable
doubt because the jury returned a true finding on the kidnapping special circumstance
allegation, which required a finding of an intent to kill. (Silva, supra, F074889.)
Therefore, it was clear from the record the jury rejected any erroneous theories and
convicted petitioner of first degree murder based on his own intent to kill.
The same reasoning applies here. Although the jury instructions may have
permitted the jury to find petitioner guilty of murder under an imputed malice theory
subsequently eliminated by Senate Bill No. 1437, the special circumstance finding
establishes the jury determined petitioner acted with intent to kill, whether as the actual
killer or as an aider and abettor to the murder. He therefore is ineligible for resentencing
as a matter of law. Any error or ambiguity in the jury instructions regarding aiding and
abetting, murder, malice, or conspiracy does not undermine this conclusion.
iii. Senate Bill No. 1437 did not unconstitutionally broaden the class of
individuals eligible for the death penalty.
Petitioner further contends that if he were deemed ineligible for resentencing, as a
matter of law, based solely on the jury’s special circumstance finding, this would run
afoul of both the Eighth and Fourteenth Amendments to the federal Constitution.
Specifically, petitioner contends the special circumstance statute, so construed, would no
longer perform a narrowing function because every person who is convicted of first
degree felony murder would now be eligible for the death penalty. We disagree.
“The United States Supreme Court’s capital punishment jurisprudence rests on the
principle that ‘ “ ‘the infliction of a sentence of death under legal systems that permit this
unique penalty to be . . . wantonly and . . . freakishly imposed’ ” ’ violates the Eighth and
15.
Fourteenth Amendments to the federal Constitution.” (People v. Bacigalupo (1993) 6
Cal.4th 457, 465.) To satisfy the Eighth Amendment, the capital punishment scheme
must narrow, or “circumscribe the class of persons eligible for the death penalty.” (Zant
v. Stephens (1983) 462 U.S. 862, 878.)
The relevant special circumstance at issue is the felony-murder special
circumstance, which applies when a murder is committed “while the defendant was
engaged in, or was an accomplice in, the commission of, [or] attempted commission of,”
an enumerated felony. (§ 190.2, subd. (a)(17).) The felony-murder special-circumstance
statute applies to a nonkiller if he or she aided and abetted in the commission of murder
with the intent to kill (id., subd. (c)) or aided and abetted in the commission of the
underlying felony with reckless indifference to human life as a major participant (id.,
subd. (d)). Our Supreme Court has held the special circumstance statute performs the
narrowing function required by the Eighth Amendment.11 (People v. Bacigalupo, supra,6 Cal.4th at p. 467.)
As the Fourth District, Division One recently held, “[t]he felony-murder special-
circumstance statute still performs this narrowing function, even after the enactment of
Senate Bill No. 1437.” (People v. Wilkins (2021) 68 Cal.App.5th 153, 165.) This is
because “[i]t makes a subclass of murderers – first degree felony murderers – death
eligible . . . [and] does not apply to other murderers such as second degree murderers or
simple murderers.” (Ibid.) Therefore, “[b]ecause the statute renders a mere subset of
murderers eligible for the death penalty, it sufficiently narrows the overall class of
11 Our Supreme Court has previously rejected multiple arguments that the state’s
death penalty scheme, and the felony-murder special-circumstance statute in particular,
fail to narrow the class of death-eligible defendants in violation of the Eighth
Amendment. (See People v. Schultz (2020) 10 Cal.5th 623, 682; People v. Covarrubias
(2016) 1 Cal.5th 838, 934; People v. Johnson (2016) 62 Cal.4th 600, 654-655; People v.
Merriman (2014) 60 Cal.4th 1, 105; People v. Scott (2011) 52 Cal.4th 452, 496; People v.
Pollock (2004) 32 Cal.4th 1153, 1195-1196.)
16.
murderers as required by the Eighth Amendment.” (Ibid.) Lastly, it is not problematic
that the elements of first degree felony murder are identical to the elements defining
death eligibility under the felony-murder special-circumstance statute. (See People v.
Johnson (2016) 62 Cal.4th 600, 636 [holding that overlapping culpability and special
circumstance elements – even identical ones – do not offend the 8th Amend.]; People v.
Catlin (2001) 26 Cal.4th 81, 158 [“first degree murder liability and special circumstance
findings may be based upon common elements without offending the Eighth
Amendment”]; see also Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [“the fact that the
aggravating circumstance duplicate[s] one of the elements of the crime does not make
[the] sentence constitutionally infirm”].) Accordingly, Senate Bill No. 1437 does not
broaden the class of individuals eligible for the death penalty as prohibited under the
Eighth Amendment to the federal Constitution.
iv. Petitioner’s additional arguments regarding the constitutionality of
Senate Bill No. 1437 are moot.
Finally, petitioner argues he was denied his right to due process and to counsel
when the trial court ruled on the constitutionality of Senate Bill No. 1437 without
appointing counsel and permitting an opportunity for briefing. Petitioner further
contends the trial court’s ruling was erroneous.
The trial court denied the petition on two alternative grounds: Senate Bill
No. 1437 is unconstitutional, and the special circumstance findings render petitioner
ineligible for resentencing as a matter of law. Because the petition was properly denied
on the latter ground, petitioner’s arguments regarding the constitutionality of Senate Bill
No. 1437 are moot.12 (People v. Hopson (2017) 3 Cal.5th 424, 459 [“a ruling will not be
12 The People now concede Senate Bill No. 1437 is constitutional. This court,
joining a line of other Courts of Appeal, has held that Senate Bill No. 1437 is
constitutional. (People v. Nash (2020) 52 Cal.App.5th 1041, 1053; see People v. Lopez
(2020) 51 Cal.App.5th 589, 594; People v. Alaybue (2020) 51 Cal.App.5th 207, 211;
People v. Johns (2020) 50 Cal.App.5th 46, 54-55; People v. Prado (2020) 49 Cal.App.5th
480, 492; People v. Smith (2020) 49 Cal.App.5th 85, 91-92, overruled on other grounds
17.
disturbed on appeal merely because it was given for a wrong reason, if the ruling would
otherwise be correct ‘ “ ‘upon any theory of the law applicable to the case,’ ” ’ and
‘ “ ‘regardless of the considerations which may have moved the trial court to its
conclusion’ ” ’ ”].)
DISPOSITION
The order dismissing petitioner’s section 1170.95 petition is affirmed.
by Lewis, supra, 11 Cal.5th at pp. 961-963, 967; People v. Bucio (2020) 48 Cal.App.5th
300, 306; People v. Solis (2020) 46 Cal.App.5th 762, 784; People v. Cruz (2020) 46
Cal.App.5th 740, 747; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270,
289; People v. Lamoureux (2019) 42 Cal.App.5th 241, 246.)
18.