People v. Badillo CA2/2 ( 2022 )


Menu:
  • Filed 2/10/22 P. v. Badillo 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
    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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
    THE PEOPLE,                                                  B309152
    Plaintiff and Respondent,                           (Los Angeles County
    Super. Ct. No. BA298295)
    v.
    EMILIO CARRILLO
    BADILLO,
    Defendant and Appellant.
    APPEAL from an order of the Los Angeles Superior Court,
    Steven D. Blades, Judge. Affirmed.
    John Lanahan, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Daniel Chang and David A. Voet, Deputy
    Attorneys General, for Plaintiff and Respondent.
    ******
    Emilio Carrillo Badillo (defendant) argues that the trial
    court erred in denying his petition for resentencing under Penal
    Code section 1170.95.1 There was no prejudicial error, so we
    affirm.
    FACTS AND PROCEDURAL BACKGROUND
    I.     Facts
    In 2006, defendant and his wife were walking along the
    side of a freeway interchange overpass after getting into a minor
    auto accident. Defendant’s wife was carrying their two-year-old
    daughter in her arms; she was also 22 or 23 weeks pregnant.
    There was more than a 30-foot drop to the road below the
    overpass. Without any warning, defendant shoved his wife
    toward the overpass’s railing. Caught off guard, the wife was
    unable to hold onto the toddler, who plummeted over the railing.
    Defendant pushed his wife a second time, and she tumbled over
    the railing to the road far below. The wife and daughter were
    injured, but survived. The fetus died. (People v. Badillo (Sept.
    29, 2009) B205547 [nonpub. opn.], at pp. 3-7.)
    II.    Procedural Background
    A.    Underlying conviction, sentence, and appeal
    The People charged defendant with (1) the murder of the
    fetus (§ 187, subd. (a)), (2) the attempted premeditated murder of
    his wife (§§ 664, 187, subd. (a)), (3) the attempted murder of his
    1     All further statutory references are to the Penal Code
    unless otherwise indicated.
    2
    daughter (§ 187, subd. (a)), and (4) child abuse (§ 273a, subd. (a)).
    The People further alleged the defendant personally inflicted
    great bodily injury on his wife and daughter. (§ 12022.7, subd.
    (d)).
    The matter went to trial. On the murder count, the jury
    was instructed that it could convict only if defendant acted with
    “malice aforethought,” which meant the intent to kill (“express
    malice”) or with consciousness disregard of how his actions are
    dangerous to life (“implied malice”). Because defendant acted
    alone, the jury was not instructed on the theories of felony
    murder (that is, a killing committed by someone else when a
    defendant and that person are committing a felony together) or
    natural and probable consequences (that is, a killing committed
    by someone else when a defendant is aiding and abetting some
    lesser crime). The jury convicted defendant of all charges and
    found true all allegations. The trial court sentenced defendant to
    two life sentences (for the second degree murder of the fetus and
    the attempted premeditated murder of his wife), plus 12 years
    (for the attempted murder of his daughter), but stayed the four-
    year child abuse sentence under section 654. On appeal, we
    affirmed defendant’s convictions but remanded so that the trial
    court could impose a minimum sentence of 15 years to life for the
    second degree murder of the fetus.
    B.    Petition for resentencing
    In April 2020, defendant filed a form petition to vacate his
    second degree murder conviction under section 1170.95.2
    2     Defendant did not seek resentencing on the attempted
    murder counts. Thus, the recent enactment of Senate Bill No.
    775 extending relief under section 1170.95 to the crime of
    attempted murder has no bearing on this appeal.
    3
    Without appointing counsel, the trial court summarily denied
    defendant’s petition, reasoning that the “undisputed facts”
    showed that defendant was not entitled to “relief as a matter of
    law” because he was “the actual killer and was convicted of
    murder on a theory of being the direct perpetrator[,] and not on a
    theory of felony murder or a theory of natural and probable
    consequences.”
    Defendant filed this timely appeal.
    DISCUSSION
    Defendant argues that the trial court erred in summarily
    denying his section 1170.95 petition. Because our consideration
    of this argument involves questions of law and the application of
    that law to undisputed facts, our review is de novo. (Tsasu LLC
    v. U.S Bank Trust, N.A. (2021) 
    62 Cal.App.5th 704
    , 715.)
    A person is entitled to relief under section 1170.95 if, as
    relevant here, (1) “[a] complaint, information, or indictment 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,” (2) he “was convicted of
    murder,” and (3) he “could not presently be convicted of murder
    because of changes to Section 188 or 189 made effective January
    1, 2019.” (§ 1170.95, subd. (a).) In January 2019, our Legislature
    amended section 188 to provide that “in order to be convicted of
    murder, a principal in a crime shall act with malice aforethought”
    and that “[m]alice shall not be imputed to a person based solely
    on his . . . participation in a crime.” (§ 188, subd. (a)(3).) Our
    Legislature’s purpose was to ensure that “[a] person’s culpability
    for murder [is] premised upon that person’s own actions and
    subjective mens rea.” (Stats. 2018, ch. 1015, § 1(g).)
    4
    As a threshold matter, we conclude that the trial court
    erred in summarily denying defendant’s petition. In People v.
    Lewis (2021) 
    11 Cal.5th 952
     (Lewis), our Supreme Court held
    that if a defendant files a facially compliant petition and requests
    the appointment of counsel, the trial court must appoint counsel
    and entertain further briefing regardless of whether the record of
    conviction unequivocally demonstrates that the defendant is not
    entitled to relief. (Id. at p. 964.) Here, defendant’s petition was
    facially compliant and he requested counsel. Thus, Lewis
    dictates the conclusion that the trial court erred in summarily
    denying defendant’s petition.
    However, this finding of error is the first step, not the last.
    That is because Lewis went on to hold that an error in summarily
    denying a section 1170.95 petition is harmless unless the
    defendant can show “‘“it is reasonably probable that if [he or she]
    had been afforded assistance of counsel [and briefing] his [or her]
    petition would not have been summarily denied without an
    evidentiary hearing.”’” (Lewis, supra, 11 Cal.5th at p. 974.)
    We conclude that defendant was not prejudiced by the
    summary denial in this case because the record forecloses
    defendant’s entitlement to relief under section 1170.95 as a
    matter of law, such that the appointment of counsel and further
    briefing from that counsel would not have mattered. In assessing
    whether a defendant seeking relief under section 1170.95 has
    made out a prima facie case warranting an evidentiary hearing, a
    trial court must take the petition’s factual allegations as true and
    ask “‘whether the petitioner would be entitled to relief if [those]
    allegations were proved.’” (Lewis, supra, 11 Cal.5th at p. 971.)
    “‘However, if the record, including the court’s own documents
    [from the record of conviction] “contain[s] facts refuting the
    5
    allegations made in the petition,” then “the court is justified in
    making a credibility determination adverse to the petitioner.”’”
    (Ibid.)
    Defendant has not made the requisite prima facie showing
    of entitlement to relief under section 1170.95. This is true for two
    reasons. First, the record establishes as a matter of law that
    defendant was the actual killer. Defendant acted alone, so the
    jury’s guilty verdict necessarily constitutes a finding that he
    committed the murder. Along the same lines, because the jury
    was never instructed on a natural and probable consequences
    theory or felony-murder theory, his murder conviction could not
    rest on either theory of vicarious liability; instead, the
    instructions only permitted the jury to convict based on
    defendant’s personal culpability. Second, the record establishes
    as a matter of law that defendant acted while personally
    harboring the necessary mens rea. Because the jury could convict
    defendant of murder only if it found that he personally acted with
    express or implied malice, its guilty verdict necessarily
    encompasses such a finding of personally harbored malice.
    Defendant offers two reasons why he was prejudiced by the
    trial court’s summary denial of his section 1170.95 petition.
    First, he argues that the trial court’s denial of relief is
    infected with legally invalid reasoning because, at one point, the
    court reasoned that defendant was not entitled to relief because
    we—in our prior appellate opinion—had found “sufficient
    evidence to convict [defendant]” of murder. Although the
    existence of sufficient evidence to support a murder conviction
    does not foreclose relief under section 1170.95 as a matter of law
    (see, e.g., People v. Harris (2021) 
    60 Cal.App.5th 939
    , 958, review
    granted April 28, 2021, S267802), any misstep in reasoning by
    6
    the trial court in this case is of no concern because the trial
    court’s ruling is nevertheless correct for the reasons we set forth
    above (and which the trial court also cited). (Diaz v. Grill
    Concepts Services, Inc. (2018) 
    23 Cal.App.5th 859
    , 874 [“Because
    we review the trial court’s ruling and not its reasoning [citation],
    any missteps in its reasoning are irrelevant.”].)
    Second, defendant argues that we should hold this appeal
    to await the outcome of our Supreme Court’s review in People v.
    Strong (Dec. 18, 2020, C091162) (nonpub. opn.), review granted
    March 10, 2021, S266606. Strong has no effect on our reasoning.
    The issue in Strong is whether a murder conviction resting on a
    natural and probable consequences theory (for which section
    1170.95 relief is potentially available) is nevertheless ineligible
    for relief under section 1170.95 relief as a matter of law due to a
    jury’s finding of the special circumstance that the defendant
    acted with implied malice that was made before our Supreme
    Court tightened appellate review of that special circumstance in
    People v. Banks (2015) 
    61 Cal.4th 788
     and People v. Clark (2016)
    
    63 Cal.4th 522
    . Because, in this case, defendant’s jury was never
    presented with a theory of liability affected by section 1170.95,
    this case presents no issue of whether a jury finding can foreclose
    relief under such a theory. Hence, Strong is irrelevant.
    7
    DISPOSITION
    We affirm the order denying relief under section 1170.95.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, Acting P. J.
    ASHMANN-GERST
    _________________________, J.
    CHAVEZ
    8
    

Document Info

Docket Number: B309152

Filed Date: 2/10/2022

Precedential Status: Non-Precedential

Modified Date: 2/10/2022