People v. Bonilla CA5 ( 2022 )

Filed 4/26/22 P. v. Bonilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F080754
Plaintiff and Respondent,
(Super. Ct. No. VCF284150)
v.
NEFTALI BONILLA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen
and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Franson, J. and Peña, J.
INTRODUCTION
In 2014, a jury found petitioner Neftali Bonilla guilty of the second degree murder
of J.G. (Pen. Code,1 § 187, subd. (a)), and found gang and firearm enhancements to be
true (§§ 186.22, subd. (b), 12022.53, subds. (d), (e)(1)). The trial court sentenced
petitioner to an aggregate term of 40 years to life.
In 2020, petitioner filed a petition for resentencing pursuant to section 1170.95.
The trial court summarily denied the petition on the ground petitioner is ineligible for
relief. The court did not provide a further statement of reasons.
Petitioner contends the trial court erred in failing to appoint counsel to represent
him on the petition and in failing to provide a statement of the evidence relied upon in its
ruling, and further argues these errors were prejudicial. We agree the court erred in
disposing of the petition without appointing counsel. Additionally, section 1170.95 now
requires a court to provide a statement setting forth its reasons for denying the petition.
(§ 1170.95, subd. (c).) However, we conclude these errors were not prejudicial because
the record of conviction establishes petitioner is ineligible for resentencing as a matter of
law. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The facts underlying petitioner’s conviction may be summarized briefly as
follows.2 Petitioner was a member of the South Side Kings, a subset of the Sureño gang.
On June 6, 2013, a Sureño gang member was hit by gunfire during a drive-by shooting.
The next night, several Sureño gang members, including petitioner, encountered J.G.,
who was a member of the North Side Visas, a subset of the Norteño gang. J.G. was shot
1 Undesignated statutory references are to the Penal Code.
2 We summarize the facts as stated in our opinion in petitioner’s direct appeal.
(People v. Bonilla (Sept. 12, 2016, F070035) [nonpub. opn.] (Bonilla).) We provide
these facts because they were recited by both parties in their briefing. However, we do
not rely on this factual summary in resolving the issues presented in this appeal. (See
§ 1170.95, subd. (d)(3).)
2.
to death by the group of Sureños. Petitioner admitted to police that he fired one shot at
the victim, but later recanted this statement. (Bonilla, supra, F070035.)
On March 4, 2014, the Tulare County District Attorney filed a first amended
information charging petitioner with the murder of J.G. (§ 187, subd. (a); count 1), with a
gang-related special circumstance (§ 190.2, subd. (a)(22)), and gang and firearm
enhancements (§§ 186.22, subd. (b)(5), 12022.53, subds. (c), (d), (e)(1)). The
information also alleged petitioner had been convicted of two prior strike offenses
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(i)), and presented various allegations
regarding petitioner’s status as a minor at the time of the offense (Welf. & Inst. Code,
§ 707, former subd. (d)(1), (d)(2)(A), (d)(2)(C)(ii)).
On March 5, 2014, a jury found petitioner not guilty of first degree murder, but
guilty of the lesser offense of second degree murder (§ 187, subd. (a)). The jury also
found true the gang and firearm enhancements (§§ 186.22, subd. (b), 12022.53,
subds. (d), (e)(1)). The remaining allegations were dismissed. On September 4, 2014,
the trial court sentenced petitioner to a term of 15 years to life for the murder, with an
additional term of 25 years to life for the firearm enhancement, for an aggregate term of
40 years to life. (Bonilla, supra, F070035.) On September 12, 2016, this court affirmed
the judgment. (Ibid.)
On January 14, 2020, petitioner, in propria persona, filed a petition for
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that 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; he was convicted of first or second degree murder at trial; and he
could not now be convicted of first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019. He further averred that he was not the
actual killer, did not act with an intent to kill, and was not a major participant in the
underlying felony or did not act with reckless indifference to human life in the course of
3.
the crime, and the victim was not a peace officer in the performance of his or her duties.
He also declared there was a prior determination by a court or jury that he was not a
major participant and/or did not act with reckless indifference to human life. Finally, he
requested counsel be appointed to represent him on the petition.
On the same day, the trial court summarily denied the petition in a handwritten
order, stating, “The Petition is denied. A review of the court file indicates the Petitioner
is not entitled to relief.” On January 27, 2020, the court issued a typewritten order
denying the petition on the same ground.
This timely appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “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
4.
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
indifference to human life, as described in subdivision (d) of Section
190.2.”3 (§ 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).)
3Additionally, 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.)
5.
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.) 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 p. 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).)
Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b)
6.
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 error, 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. Appointment of Counsel
Petitioner contends the trial court erred in failing to appoint counsel.
At the time the trial court ruled on the petition, our Supreme Court had not
resolved whether section 1170.95 requires the appointment of counsel or further briefing
immediately upon the filing of a facially sufficient petition. (See Lewis, supra, 11
Cal.5th at pp. 961-967.) However, both our Supreme Court and Legislature have since
clarified that counsel must be appointed if requested, and briefing must proceed, so long
as the petition complies with the requirements of section 1170.95, subdivision (b)(1) and
(2). (§ 1170.95, subd. (b)(3); accord, Lewis, at pp. 962-963, 967.) Here, the People do
not suggest the petition failed to meet the requirements of section 1170.95, subdivision
(b). Accordingly, appointment of counsel and a full opportunity for briefing were
required by section 1170.95, subdivisions (b)(3) and (c). (See Lewis, at pp. 961-963,
967.) The trial court’s failure to follow these procedures constitutes error under the law,
as amended.
III. Statement of Reasons
Petitioner contends the trial court was required to provide a statement setting forth
the basis for its ruling to ensure meaningful appellate review.
As stated, section 1170.95 was amended after the trial court ruled on the petition.
Section 1170.95, subdivision (c) now provides, “If the court declines to make an order to
show cause, it shall provide a statement fully setting forth its reasons for doing so.”
7.
Accordingly, we are compelled to agree with petitioner that section 1170.95 requires a
trial court to provide a statement of reasons when denying a petition at the prima facie
stage. The trial court’s failure to do so constitutes error under the law, as amended.
IV. Prejudice
Because the trial court erred in failing to appoint counsel and in failing to provide
a statement of reasons for its decision, we may affirm only if petitioner was not
prejudiced by the errors. (Lewis, supra, 11 Cal.5th at pp. 972-974.) As we explain, we
conclude petitioner was not prejudiced because the record establishes he is ineligible for
resentencing as a matter of law.
To be eligible for relief pursuant to section 1170.95, petitioner must have been
convicted of felony murder or murder under a natural and probable consequences theory
or other theory of imputed malice. (§ 1170.95, subd. (a); accord, Gentile, supra, 10
Cal.5th at p. 853.) However, the record of conviction reflects petitioner was not
convicted under such theories. The jury was instructed on the elements of both first and
second degree murder with malice aforethought, but was not instructed on felony murder
or murder under a natural and probable consequences or other imputed malice theory. To
the contrary, the trial court specifically declined to instruct the jury on a natural and
probable consequences theory of murder. The prosecution argued petitioner was guilty
of murder as a direct aider and abettor who acted with at least implied malice. The
prosecution did not argue petitioner was guilty of felony murder or murder under a
natural and probable consequences or other imputed malice theory. These theories were
not presented to the jury and there is therefore no possibility the jury found petitioner
guilty under such theories. Because petitioner was not convicted of felony murder or
murder under a natural and probable consequences or other imputed malice theory, he is
ineligible for resentencing as a matter of law. (§ 1170.95, subd. (a).) He therefore was
not prejudiced by the court’s summary denial of the petition without appointing counsel.
(Lewis, supra, 11 Cal.5th at pp. 972-974.)
8.
Nonetheless, petitioner argues the jury instructions on causation and implied
malice allowed him to be convicted under a natural and probable consequences theory.
The challenged instruction on causation provided:
“An act causes the death of J.G. if the the [sic] death of J.G. is the direct,
natural, and probable consequence of the act and the the [sic] death of J.G.
would not have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely to happen
if nothing unusual intervenes. In deciding whether a consequence is
natural and probable, consider all the circumstances established by the
evidence.” (First and third italics added.)
The challenged instruction on implied malice provided, in relevant part, that
petitioner acted with implied malice if:
“1. He intentionally committed an act; [¶] 2. The natural and probable
consequences of the act were dangerous to human life; [¶] 3. At the time
he acted, he knew his act was dangerous to human life; [¶] AND [¶]
4. He deliberately acted with conscious disregard for human life.” (Italics
added.)
Although the “natural and probable consequences” language of these instructions
is seemingly similar to the natural and probable consequences doctrine, these are two
“distinctly different concepts.” (People v. Soto (2020) 51 Cal.App.5th 1043, 1056,
abrogated on another ground by Lewis, supra, 11 Cal.5th at p. 967; accord, People v.
Chiu (2014) 59 Cal.4th 155, 158, abrogated on another ground by Sen. Bill No. 1437
(2017-2018 Reg. Sess.).) A direct aider and abettor to murder must at least share the
mens rea of the actual perpetrator, i.e., express or implied malice. (Soto, at p. 1057.)
“For implied malice murder, [the requisite] intent is that the perpetrator ‘ “knows that his
conduct endangers the life of another and . . . acts with conscious disregard for life.” ’
[Citation.] The ‘physical component’ required for implied malice murder ‘is satisfied by
the performance of “an act, the natural consequences of which are dangerous to life.” ’ ”
(Id. at p. 1058.) In contrast, an accomplice whose liability for murder is premised on the
natural and probable consequences doctrine “need only intend to aid a different, less
9.
serious ‘target’ crime,” the natural and probable consequence of which is murder. (Id. at
p. 1057.) Here, the jury was not instructed on the natural and probable consequence
doctrine or any target crime upon which murder based on a natural and probable
consequences theory could be predicated. The “natural and probable consequences”
language of the causation and implied malice instructions did not transform petitioner’s
murder conviction as a direct aider and abettor into one under the natural and probable
consequences doctrine. (Id. at pp. 1058-1059.)
Because petitioner was not convicted of felony murder or murder under a natural
and probable consequences or other imputed malice theory, he is ineligible for
resentencing as a matter of law. We therefore conclude there is no reasonable probability
petitioner would have been afforded an evidentiary hearing had he been represented by
counsel, and the court’s error in failing to follow the procedures set out in section
1170.95, subdivision (c) was harmless. (Lewis, supra, 11 Cal.5th at pp. 973-974.)
DISPOSITION
The order is affirmed.
10.