Filed 1/21/20 P. v. Beltran CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

SEBASTIAN PONCE BELTRAN,

Defendant and Appellant.

E073437

(Super.Ct.No. FSB030278)

OPINION

APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed.

Sebastian Ponce Beltran, in pro. per.; Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

Between 1991 and 1996, defendant and appellant Sebastian Ponce Beltran engaged in continuous and substantial sexual conduct with his minor daughters. In 2002, defendant pleaded no contest to two counts of forcible lewd acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1); counts 2 & 9). He also admitted that he committed the offenses against multiple victims within the meaning of the one strike law (§ 667.61, subd. (b)). In return, defendant was sentenced to a total term of 15 years to life in state prison and the remaining charges and enhancement allegations were dismissed.

Defendant appeals from a postjudgment order denying his petition for resentencing pursuant to section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). Based on our independent review of the record, we affirm the order.

II

FACTUAL AND PROCEDURAL BACKGROUND

In November 1996, the victims reported that their father had been sexually abusing and molesting them for several years. The abuse began when Victim No. 1 was seven years old, and Victim No. 2 was five years old. The abuse occurred almost daily and involved forced touching and sexual intercourse.

On June 13, 2001, an information was filed, charging defendant with two counts of continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a); counts 1 & 8) and eight counts of forcible lewd acts against a child under 14 years of age (§ 288, subd. (b)(1)); counts 2-7, 9 & 10.) The information further alleged that defendant committed counts 2 through 7, 9 and 10 against multiple victims within the meaning of the one strike law. (§ 667.61, subd. (b).)

On October 24, 2002, pursuant to a negotiated disposition, defendant pleaded no contest to counts 2 and 9. He also admitted that he committed the offenses against multiple victims. In return, defendant was promised a total term of 15 years to life and dismissal of the remaining charges and enhancement allegations.

On December 4, 2002, defendant was sentenced in accordance with his plea agreement to 15 years to life on count 2 and a concurrent term of 15 years to life on count 9. The remaining charges and allegations were dismissed.

On January 1, 2019, Senate Bill 1437 became effective (2017-2018 Reg. Sess.), which amended the felony murder rule and the natural and probable consequences doctrine as it relates to murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 also added section 1170.95, which allows those “convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)

On April 29, 2019, defendant filed a petition for resentencing pursuant to section 1170.95.

On June 7, 2019, the People filed an informal response, arguing defendant was not eligible for relief because he was not convicted of a qualifying offense.

On August 26, 2019, the trial court denied defendant’s section 1170.95 petition, finding defendant was not eligible for relief because he was neither charged with nor convicted of murder. This appeal followed.

III

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his brief, defendant makes collateral arguments relating to his underlying plea, asserting he had received ineffective assistance of counsel, was forced to take the plea, and he did not commit the offenses. He also believes that his offenses are similar offenses under section 189, and therefore Senate Bill 1437 applies to his case. We disagree.

On September 30, 2018, the Governor signed Senate Bill 1437. “The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722.)

Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019) 35 Cal.App.5th 141, 144.) “This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed ‘“for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’ [Citation.]” (In re R.G., at p. 144.) Aider and abettor liability under the doctrine was thus “vicarious in nature.” (People v. Chiu, at p. 164.)

Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer ‘be imputed to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)” (In re R.G., supra, 35 Cal.App.5th at p. 144.) “Senate Bill 1437 also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony-murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749; § 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v. Lopez (2019) 38 Cal.App.5th 1087, 1099-1100; People v. Martinez, supra, 31 Cal.App.5th at p. 723.) “Senate Bill 1437 thus ensures that murder liability is not imposed on a person who did not act with implied or express malice,” or—when the felony murder doctrine is at issue—“was 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.” (People v. Munoz, at pp. 749-750; Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; People v. Martinez, at p. 723.)

Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; People v. Martinez, supra, 31 Cal.App.5th at p. 723.) An offender may file a section 1170.95 petition if he or she was prosecuted under a felony murder or natural and probable consequences theory, but under amended sections 188 or 189, could not have been convicted of first or second degree murder. (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must conduct a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1); People v. Martinez, at pp. 723-724.) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3); People v. Martinez, at pp. 723-724.)

In this case, defendant’s record of conviction demonstrates he is not eligible for relief under the provisions of section 1170.95. The provisions of section 1170.95 by its plain terms apply only to those defendants prosecuted under a felony murder or natural and probable consequences theory for murder. Defendant’s record of conviction shows that he was neither charged with nor convicted of murder. Rather, defendant was charged with sexual offenses, and pleaded no contest to committing two counts of forcible lewd acts upon his minor daughters. Accordingly, Senate Bill 1437 does not apply to defendant’s offenses, and defendant cannot make a prima facie showing he is entitled to relief under section 1170.95.

An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.

IV

DISPOSITION

The order denying defendant’s section 1170.95 petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.