People v. Cervantes

• Decision Date: 09 March 2020
• Docket Number: E070980
• Citation: 259 Cal.Rptr.3d 585,46 Cal.App.5th 213
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Omar Jesus CERVANTES, Defendant and Appellant.

46 Cal.App.5th 213

259 Cal.Rptr.3d 585

The PEOPLE, Plaintiff and Respondent,

v.Omar Jesus CERVANTES, Defendant and Appellant.

E070980

Court of Appeal, Fourth District, Division 2, California.

Filed March 9, 2020

Allen G. Weinberg, Beverly Hills, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SLOUGH, J.

Omar Jesus Cervantes appeals his conviction for second degree murder, arguing it must be reversed under the recently enacted Senate Bill No. 1437 (SB 1437) and the changes the new law made to the natural and probable consequences doctrine. SB 1437 amended the murder statutes ( Pen. Code, §§ 188 & 189 ; unlabeled statutory citations refer to this code) to modify the definition of murder and created a new provision—section 1170.95—which establishes procedures for eligible defendants to seek resentencing under the new definition. We conclude Cervantes cannot raise his SB 1437 claim on direct appeal, but must follow the procedures in section 1170.95 and petition the superior court for relief.

Cervantes also raises multiple challenges to his sentence. As we explain below, to clear up confusion about the particulars of his sentence, we will direct the trial court to correct the July 20, 2018 minute order to reflect that it did not impose a gang enhancement on the murder count or a section 1203.1c presentence confinement fee. We will also direct the court to correct the abstract of judgment to reflect that it did not impose a registration requirement. In all other respects, we will affirm the judgment.

IFACTS

The Riverside County District Attorney charged Cervantes with murder (§ 187, subd. (a), count 1) and assault with a deadly weapon (a wooden bat) (§ 245, subd. (a)(1)), both committed for the benefit of a gang (§ 186.22, subd. (b)(1)). As to the murder count, the information alleged Cervantes was a principal who personally used a firearm causing great bodily injury and death. (§ 12022.53, subds. (d)-(e).)

At trial, the prosecution presented evidence that Cervantes was hanging out in Moreno Valley with members of his gang, 420 Kings, when he planned and directed the murder of Marquez, a member of the rival gang Kush Blown Kings. The 17-year-old Cervantes was driving his father's car with one of his friends, when he saw the victim, Marquez, walking down the street. Cervantes picked up his fellow gang members, codefendants Mageo and Mariscal, at a local park. Cervantes knew Mariscal had a gun and drove Mariscal to his house to retrieve it. Afterward, they drove around looking for Marquez and found him walking back from Circle K with two friends, carrying soda and snacks.

Cervantes ordered Mariscal to "rob" and "shoot" Marquez. At trial, there was conflicting evidence about whether the other passengers in the car believed Cervantes wanted Mariscal to shoot Marquez or simply beat him and scare him with the gun. Cervantes remained in the driver's seat as Mariscal and Mageo jumped out of the car, Mariscal carrying his gun and Mageo carrying a small wooden bat. They chased Marquez and his friends to a nearby residence where Marquez and one of his friends ran into the open garage. Mageo caught up with the friend in the garage and began beating him with the bat. Mariscal ran after the other friend, and when he realized he wasn't Marquez, said, "that's not him," and doubled back to the garage. Mariscal found Marquez and shot him in the torso, killing him.

When Mariscal returned to the car, Cervantes was standing outside the driver's door. He pointed at one of Marquez's friend's and told Mariscal to "kill that motherfucker too." Instead, Mariscal climbed into the backseat and announced he "got" Marquez. Cervantes asked whether Mariscal "really did get him," then started "bragging it up." They left the scene and Cervantes drove Mariscal back to his house to get rid of the gun.

At trial, the prosecution argued Cervantes was guilty of murder under two alternative theories. They argued he aided and abetted Mariscal's shooting of Marquez, or, at the very least, aided and abetted Mariscal's assaulting Marquez with a firearm, and murder was a natural and probable consequence of that assault.

The jury convicted Cervantes of second degree murder and assault with a deadly weapon, found both crimes were committed for the benefit of a gang, but did not find the gun enhancement true. The trial court sentenced Cervantes to 15 years to life for the murder. For the assault, it imposed a consecutive sentence of nine years, consisting of the upper term of four years plus a five-year enhancement for the gang allegation. The trial court also imposed the following fines and fees: a maximum of $1,095 for the costs of the probation report; a $514.58 booking fee; a $300 restitution fine ( Pen. Code, § 1202.45, subd. (c) ); an $80 court operations fee ( Pen. Code, § 1465.8 ); and a $60 conviction fee ( Gov. Code, § 70373 ).¹

IIANALYSIS

A. SB 1437

SB 1437 modified California's felony murder rule and natural and probable consequences doctrine to ensure murder liability is not imposed on someone unless they were the actual killer, acted with the intent to kill, or acted as a major participant in the underlying felony and with reckless indifference to human life. (Stats. 2018, ch. 1015, § 4; § 1170.95, subd. (a)(3).) SB 1437 became effective on January 1, 2019, after Cervantes's conviction but before he filed his opening brief. He argues that because the legislation went into effect while his appeal was pending, he is entitled to a reversal of his murder conviction in this appeal based on the retroactive application of these changes under the rule articulated in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ). Under the Estrada rule, " ‘[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date’ [citation], unless the enacting body ‘clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.’ " ( People v. Dehoyos (2018) 4 Cal.5th 594, 600, 229 Cal.Rptr.3d 687, 412 P.3d 368 ( Dehoyos ).)

We agree with the three other appellate decisions to address this issue— People v. Martinez (2019) 31 Cal.App.5th 719, 242 Cal.Rptr.3d 860 ( Martinez ) from Division Five of the Second District, People v. Anthony (2019) 32 Cal.App.5th 1102, 244 Cal.Rptr.3d 499 ( Anthony ) from Division Two of the First District, and People v. Carter (2019) 34 Cal.App.5th 831, 246 Cal.Rptr.3d 498 ( Carter ) from Division One of the Fourth District—that the petitioning process in section 1170.95 is the exclusive means of obtaining relief under SB 1437 for defendants in Cervantes's position. Relief under the new law defining murder is not automatic. Because Cervantes's entitlement to relief will depend on the presentation of new evidence and the resolution of factual issues, the superior court, not the appellate court, is the proper first venue for his claim.

Put another way, we conclude the Estrada rule is not implicated on these facts. That rule, or more aptly, presumption, applies when the Legislature is silent as to whether it intended an amendment or change in the law to operate only prospectively. ( Estrada, supra , 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948 ; see also People v. Nasalga (1996) 12 Cal.4th 784, 793, 50 Cal.Rptr.2d 88, 910 P.2d 1380 [presumption not triggered "where the Legislature clearly signals its intent to make the amendment prospective"].) Here, the Legislature was not silent as to the class of offenders to which SB 1437 applies. We conclude section 1170.95's petition process provides a clear indication of our lawmakers' intent regarding the retroactive effect of the new definition of murder. Those who suffered convictions for murder under the felony murder rule or natural and probable consequences doctrine before SB 1437's enactment can obtain relief under the new law, but only through the petition process.

1. The new law's provisions

SB 1437 "amend[s] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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).) To accomplish this, SB 1437 modified section 188, which defines malice, and section 189, which defines the degrees of murder, and now addresses felony murder liability. Under the new definition of murder, malice may no longer be imputed to a defendant under the felony murder rule or on the sole ground that the victim died as a natural and probable consequence of a designated crime. SB 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).)

Such an offender may file a petition under section 1170.95 where three conditions are met: "(1) A complaint, information, or indictment was filed against the petitioner that 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 accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder...