People v. Brock

• Decision Date: 06 February 2023
• Docket Number: E077983
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BROCK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL BROCK, Defendant and Appellant.

E077983

California Court of Appeals, Fourth District, Second Division

February 6, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No. FBA04003 Tony Raphael, Judge. Reversed.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P J.

In 1997, defendant Michael Brock pled guilty to one count of murder based on his participation along with three others in planning and carrying out a carjacking that

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resulted in the shooting death of the victim in a landfill near Barstow, California. Defendant was sentenced to a term of 25 years to life. In 2019, following enactment of Senate Bill No. 1437, defendant filed a petition pursuant to current Penal Code section 1172.6 (formerly § 1170.95). The trial court determined he had established a prima facie showing of eligibility and issued an order to show cause. Following an evidentiary hearing, the court found defendant was not entitled to resentencing because he was a major participant and acted with reckless indifference to human life. Defendant appeals.

On appeal, defendant argues (1) he is entitled to a new evidentiary hearing because the trial court considered evidence currently deemed inadmissible pursuant to the amendments enacted pursuant to Senate Bill No. 775, (2) the People failed to prove beyond a reasonable doubt that defendant acted with reckless indifference to human life, and (3) defendant was deprived of effective assistance of counsel if the procedural error is deemed forfeited. We reverse.

Background

Because defendant pled guilty in the trial court and because the documents comprising the factual basis for the plea are not included in the record on appeal^[1], we take the facts of the offense from the preliminary hearing transcript, which was submitted by stipulation of both parties in the trial court, was relied upon by petitioner on appeal for

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the background facts, and was made a part of the record on appeal upon defendant's request for augmentation.

On the date of the killing, defendant and his three companions (Alexander Sanns, Dwayne Peirfax, and David Ortiz) met at Peirfax's house, and discussed how they were bored and decided to drive to Las Vegas, but first they would need to steal a car. Defendant went home and got his gear-dark clothing, a dark hat, jacket and gloves-prior to the planned theft. He also brought a roll of duct tape to tie up any victim. They went to an apartment complex to steal a car. They went to the parking lot of the complex waiting for a prospective victim to show up so they could steal his or her car.

Victim Robert Chen drove up in a vehicle, and, as he exited the car, he was approached by defendant and Sanns. Sanns had his hand on a large caliber gun in his pocket, which he drew out as they approached the victim. The gun had a sawed-off barrel. Defendant was standing next to Sanns when the car was "jacked."

According to defendant, Sanns demanded the victim's car keys, and the victim complied. According to Sanns, defendant demanded the keys as Sanns pointed the gun at the victim. Then defendant called to Ortiz and Peirfax who were waiting near a trash dumpster. Ortiz and Peirfax joined defendant and Sanns, as the victim was forced into the rear seat of the vehicle, with Sanns and Peirfax on either side of him. Ortiz drove the vehicle, with defendant in the front passenger seat.

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As they drove, Sanns and Peirfax took property from the victim: $60 in cash, and a watch. After Sanns took money from the victim's wallet, he handed the wallet back to the victim. Eventually they reached the Barstow trash landfill, where they made a U-turn and stopped on the opposite side of the road, facing Barstow. Prior to arriving at the landfill, defendant looked through the glove box of the victim's vehicle, looking for whatever might be there. The defendant along with Ortiz and Sanns walked the victim out into the desert while Peirfax waited at the car. Defendant stopped at some point, while Sanns and Ortiz proceeded approximately 20 feet further with the victim. Sanns tried to fire the gun but was unsuccessful, so Ortiz, who noticed the barrel was loose, took the gun from him and jammed the barrel back into the gun. Thereafter, Ortiz fired three shots^[2], and the three of them (defendant, Sanns and Ortiz) returned to the car.

Meanwhile, in the trunk of the vehicle, the victim's briefcase, which held his phone, was found; Peirfax also found a key chain, a pocket knife and some cases of V-8 juice in the trunk, which he kept. Defendant received $20 of the victim's cash. After the killing, the group returned to Barstow where the gun and the briefcase were dropped off at the house of an acquaintance. The car was left at a Sunset Drive address, approximately one mile and a half from the apartment where the victim was staying.

The next morning, an employee of the landfill discovered the body of the victim and reported it to co-workers and called for emergency assistance. The victim had suffered three gunshot wounds: one shot was to the face, with noticeable stippling. A

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second wound entered the victim's back and exited from his chest. The third wound was on the victim's inner left wrist, with an exit wound on the outer wrists. The facial wound, which penetrated the brain before exiting, was the cause of death. The wounds to the wrist lined up with the chest exit wound, suggesting the victim was laying on his left side or face when inflicted.

Each of the perpetrators were interviewed and made incriminating statements which were admitted at the preliminary hearing. A second amended information charged defendant (along with his co-perpetrators) with murder (Pen. Code § 187, subd. (a))^[3], with two special circumstances alleging the murder occurred during the commission of a kidnaping, as well as during the commission of a robbery (§ 190.2, subd. (a)(17)). Defendant was also charged with carjacking (§ 215, count 2), kidnaping (§ 207, subd. (a), count 3), and robbery (§ 211, count 4). Respecting counts, it was further alleged that a principal was armed with a firearm (§ 12022, sub. (a)(1)), and that a principal personally used a firearm (§ 12022.5, subds. (a)(1), (a)(2)).

During voir dire at trial, and apparently after in limine motions were considered by the court^[4], defendant entered a change of plea to guilty of first degree murder, based on carjacking, and was sentenced to a stipulated sentence of 25 years to life. In return for the plea, the prosecution dismissed the remaining counts and all enhancements and

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special circumstances allegations. The factual basis for the plea would be established by the police reports and the transcript of the in limine motions.

On January 15, 2019^[5], following the enactment of Senate Bill No. 137, defendant filed a petition for resentencing pursuant to former section 1170.95. On June 24, 2021, the trial court determined defendant had made a prima facie showing of eligibility and issued an order to show cause hearing. On October 29, 2021, the evidentiary hearing took place. The parties stipulated that the court could consider the preliminary hearing transcript, along with the second amended information, the plea agreement and sentencing documents, along with parties' respective briefs and their accompanying exhibits, including the decision in the direct appeal of People v. Sanns, E028389 (filed February 14, 2002, nonpub. opn.) in which defendant raised a sentencing error. After considering all the submissions and the arguments of counsel, the court concluded the People had proven beyond a reasonable doubt that the defendant was a major participant who acted with reckless indifference to human life, and denied the petition.

Defendant appealed.

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Discussion

1. General Principles Governing Review of a Resentencing Decision

Following an Evidentiary Hearing.

Section 1170.95, subdivisions (b) and (c) (now section 1172.6, subdivisions (b) and (c))^[6], create a two-step process for evaluating a petitioner's eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962.) "First, the trial court determines whether the petition is facially sufficient and appoints counsel, if requested. [Citation.] If the petition is facially sufficient, then the trial court moves on to subdivision (c), and follows the briefing schedule set forth in the statute. [Citations.] After completion of this...