Filed 12/18/19 P. v. Contreras 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

RUBEN CONTRERAS,

Defendant and Appellant.

F079044

(Super. Ct. No. VCF027503C)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.

Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Ruben Contreras asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

PROCEDURAL SUMMARY

On July 11, 1991, defendant was convicted by jury trial of first degree murder with the felony murder special circumstance that he murdered the victim while engaged in the commission of the crime of robbery (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17); count 1), premeditated attempted murder (§§ 664, 187, subd. (a); count 2), conspiracy to commit robbery (§§ 182, subd. (a), 211; count 3), and two counts of robbery (§ 211; counts 4 & 5). As to count 2, the jury also found true the allegations that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (d)) and personally inflicted great bodily injury (§ 12022.7).

On October 18, 1991, on count 2, the trial court imposed life with the possibility of parole for attempted murder, plus three consecutive years for the deadly weapon enhancement and three consecutive years for the great bodily injury enhancement. On count 1, the court imposed life without parole for first degree murder, to be served consecutively to the term imposed on count 2. Terms on the remaining counts were stayed (§ 654).

On November 21, 1991, defendant filed a notice of appeal, and we affirmed in People v. Contreras (1993) 17 Cal.App.4th 813 (Contreras).

On January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended sections 188 and 189 to reduce accomplice liability for felony murder (see discussion infra) and provided a procedure for petitioning for relief (§ 1170.95).

On February 27, 2019, defendant filed a petition for resentencing under section 1170.95, alleging that he was convicted of first degree murder under the felony murder rule or the natural and probable consequences doctrine, and that under the new law, he could not be convicted of murder because he was not the actual killer, did not aid the killer with the intent to kill, and was not a major participant in the felony or did not act with reckless indifference to human life during the felony.

On March 1, 2019, the trial court denied the petition because “the jury’s true finding of a special circumstance felony murder [was] conclusive evidence that the petitioner was a major participant in the robbery and that he acted with reckless disregard for human life.” The court stated: “The petition is denied for failure to state a prima facie showing that petitioner could not have been convicted had S.B. 1437 been in effect at the time of his crime because the petitioner was a major participant in the robbery and acted with reckless indifference to human life. Petitioner does not fall within the provisions of Penal Code Section 1170.95.”

On March 27, 2019, defendant filed a notice of appeal.

FACTS

“On March 30, 1989, Alvaro Lopez and Guadalupe Sanchez [the victim] agreed to assist Jose Casares in a cocaine sale. Casares was a known cocaine dealer. Lopez met Casares when the two were in jail together. Sanchez lived with Lopez and Lopez’s sister, Hidalia Lopez, who was Sanchez’s common-law wife.

“On March 30, Lopez and Sanchez drove Hidalia’s car to Elvira Haro’s residence. Haro was caring for Lopez’s twins, one of whom was ill. Lopez needed money to buy medicine for the sick child. They left, intending to go to Lopez’s uncle’s house. On the way they met Casares. According to Lopez, Sanchez agreed to buy Casares three ounces of cocaine and deliver it to Casares’s home. Lopez denied being a drug dealer, but the two men did purchase cocaine. Sanchez placed it under the seat of the car.

“Between 6:30 and 7 p.m., Lopez and Sanchez arrived at Casares’s residence. Casares and [defendant] got into the backseat of Hidalia’s car. Sanchez was driving and Lopez was in the front passenger seat. The group drove to the location where Casares supposedly had a friend who wanted to buy drugs. The friend had company, however, and no sale was made. Then Casares told Sanchez to drive to an area on Avenue 328 near Road 127 where the group was to wait.

“After the car stopped, Casares ordered Sanchez to give him the cocaine. Sanchez handed the cocaine to Casares in the backseat. Casares then shot Sanchez in the head at close range, killing him.

“Casares yelled to [defendant] to cut Lopez’s throat. A struggle ensued. Lopez was shot in the arm by Casares and stabbed numerous times by [defendant]. Lopez was able to exit the car but the attack continued. Lopez was stabbed approximately 14 times. Finally, Lopez fell on the ground near the back of the car. Casares fired at Lopez but missed. Casares and [defendant] then dumped Sanchez’s body and drove off. Witnesses summoned help and Lopez miraculously survived. Those who witnessed the crime were unable to positively identify the assailants. They all agreed the assailants were young adult Mexican males, but their descriptions varied somewhat as to height, weight and build.

“Lopez initially failed to identify his assailants. He was shown two photographic lineups, one including Casares’s picture and one including [defendant’s], but made no identification. The investigating officer saw Lopez react to Casares’s photo and told Lopez’s wife that he thought Lopez was being untruthful in saying he did not recognize his assailants in the photographs. He also told her that two suspects were in custody. After speaking with his wife, while still hospitalized, Lopez picked Casares from a photo lineup but did not identify [defendant]. He also failed to identify [defendant] when shown a single photo of [defendant] by the deputy district attorney two days before the preliminary hearing. Lopez identified [defendant] at the preliminary hearing when [defendant] was sitting at counsel table next to Casares. At trial, Lopez said he was sure [defendant] was his assailant. Lopez admitted he lied when he first told officers he did not recognize Casares in the photo lineup. He said his motive in lying was his desire to ‘get revenge’ once released from the hospital. He not only recognized Casares’s picture, he knew him.

“At trial, informant Gilbert Galaviz testified for the prosecution. Galaviz lived with Casares and [defendant]. He testified that on the night of March 30, 1989, [defendant] and Casares left with Lopez and Sanchez. Casares had a gun and [defendant] had a butcher knife. They returned later that night with blood on their clothes. [Defendant] told Galaviz he had ‘killed a pig.’ [Defendant] and Casares changed clothes and said they had to get ‘rid’ of the clothes. The two then left.

“On the morning of March 31, 1989, [defendant] returned to the residence and told Galaviz they had killed Sanchez and stabbed Lopez. Casares had a large amount of cocaine.

“When Galaviz gave his initial report to police, he was under arrest for petty theft and had not appeared for sentencing on a burglary conviction. For cooperating with police, Galaviz was released on his own recognizance, the petty theft charge was dropped, and he served a shorter sentence for the burglary. At the time of trial, Galaviz was serving a 25-year-to-life sentence for murder. Galaviz murdered his victim with a knife taken from the residence where he lived.

“[Defendant’s] fingerprints were found inside and on the outside of Hidalia’s car. Lopez’s and Casares’s prints were also found in the car. Casares’s prints contained blood; [defendant’s] prints did not. Sanchez’s prints were not found. When the identifications were first made, none of the usable prints lifted from the car were identified as Galaviz’s even though comparisons were made. Later, two, possibly three, prints first classified as ‘unusable’ were later determined ‘usable.’ These were not compared to Galaviz’s prints.” (Contreras, supra, 17 Cal.App.4th at pp. 816–818.)

DISCUSSION

Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 2) amended sections 188 and 189 to reduce accomplice liability for felony murder where the accomplice did not commit the act that killed the victim. Section 189, subdivision (e), now provides that a participant in the perpetration of a felony listed in subdivision (a)—that is, first degree felony murder for specified felonies, such as robbery—in which a death occurs is liable for murder only if he (1) was the actual killer, (2) was not the actual killer, but acted with intent to kill in aiding and abetting the actual killer, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d).

Senate Bill No. 1437 also added section 1170.95, which provides a procedure by which those already convicted of murder before the 2018 enactment of Senate Bill No. 1437 may seek retroactive relief in a petition to the trial court. (See People v. Martinez (2019) 31 Cal.App.5th 719, 724.) Section 1170.95 allows “[a] person convicted of felony murder or murder under a natural and probable consequences theory” to file a petition with the trial court that sentenced him, to have the murder conviction vacated and to be resentenced when three conditions are met: (1) the charges 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 or plea agreement; and (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).) If the petitioner makes a prima facie showing, the prosecutor must file and serve a response, and the petitioner may file and serve a reply. (Id., subd. (c).) If the trial court concludes the petitioner has made a prima facie showing, the court shall issue an order to show cause and shall hold a hearing at which the prosecution shall have the burden of proof. (Id., subd. (d)(1).) The prosecutor and the petitioner “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (Id., subd. (d)(3).) “If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” (Id., subd. (d)(2).)

In this case, the trial court concluded defendant’s petition failed to make a prima facie showing that defendant could not be convicted of first degree murder under the new laws. We agree. At trial, the jury had been instructed on the special circumstance of murdering Sanchez as an aider while engaged in the commission of the crime of robbery, as follows:

“[If you find that a defendant was not the actual killer of a human being …, you cannot find the special circumstance to be true [as to that defendant] unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] any actor in the commission of the murder in the first degree] [.] [, or with reckless indifference to human life and as a major participant, [aided,] [abetted,] [counseled,] [commanded,] [induced,] [solicited,] [requested,] [or] [assisted] in the commission of the crime of robbery which resulted in the death of a human being, namely Guadalupe Sanchez.”

Defendant did not actually kill Sanchez; thus, the jury found either that defendant aided the murder with the intent to kill, or aided the murder as a major participant in the underlying felony and acted with reckless indifference to human life. Either finding would satisfy the new version of section 189, subdivision (e). The trial court properly denied the petition.

DISPOSITION

The order denying the section 1170.95 petition is affirmed.