People v. Franco

• Decision Date: 07 May 2021
• Docket Number: B305769
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SALVADOR A. FRANCO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. SALVADOR A. FRANCO, Defendant and Appellant.

B305769

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

May 7, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA142960)

APPEAL from an order of the Superior Court of Los Angeles County. John A. Torribio, Judge. Affirmed.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Salvador Franco appeals the summary denial of a petition for resentencing under Penal Code¹ section 1170.95.

Following a jury trial in 2018, appellant was convicted of the second degree murder of Raul Cervantes in violation of section 187, subdivision (a), and sentenced to a term of 15 years to life in state prison. Appellant filed a petition for resentencing under section 1170.95 on February 24, 2020. The trial court summarily denied the petition after finding that the prosecution did not proceed on a felony-murder theory or under the natural and probable consequences doctrine. Appellant contends the trial court erred in denying his petition without appointing counsel and without giving the parties an opportunity to brief the matter. We disagree: The trial court did not err in conducting its prima facie review for eligibility without first appointing counsel. Although the trial court improperly relied on the preliminary hearing transcript and its own memory of the case, the court correctly ruled appellant is ineligible for relief under section 1170.95 as a matter of law because appellant was not convicted under a felony-murder theory or the natural and probable consequences doctrine.

FACTUAL BACKGROUND²

Around 1:40 in the afternoon on July 30, 2016, Raul Cervantes was fatally shot as he stood talking with another manon the Gage Bridge in Bell Gardens. The shooter wore an oversized black hoodie and an LA Dodgers hat, which concealed his face. One witness saw the shooter run up the embankment and onto the bridge before shooting Cervantes in the side with what appeared to be a long-barreled rifle.

Officers recovered four expended .22-caliber long rifle casings, which could have been fired from a rifle or a handgun. A dog handler traced the shooter's path down the embankment, across Gage Avenue, and onto River Drive, where the shooter appeared to have fled in a car. Using surveillance video, police identified the car as a gray Nissan, which Jazmine N. had rented the day before from Hertz.

Jazmine lived with appellant Franco in a house near the Gage Bridge. On July 30, 2016, Jazmine awoke to find Franco had taken the rental car. Jazmine called Franco, and he told her not to call him because he "was doing something right now." Later when she heard police activity on the Gage Bridge, Jazmine called Franco again, and this time he told her to meet him at a particular house on Vinevale Avenue, a Bell Gardens Locos gang hangout. When Jazmine arrived at the house Franco told her what had happened on the bridge. He sounded panicked and scared.

Franco's codefendant, Manuel Garibay, was arrested about a month after the shooting. While Garibay was in custody, police placed a paid informant in his cell, and their recorded conversation was played for the jury. Garibay told the informant he laid down in the seat of the car and his "homie" drove him tothe spot where he got dropped off, and then he "did [his] thing." Garibay said he "got up on them" and "hit" "[b]oth of them" "[l]ike, 15 times." Garibay described the gun he used as "a big-ass rifle." After the shooting Garibay ran across the street, jumped over the guardrail, and ran down the embankment where his "homie" was waiting in the gray Nissan. Garibay hopped in the car and they took off.

Garibay told the informant he was wearing a black sweater with a hood and an "LA" hat that covered his face. Both Franco and Garibay were admitted members of the Bell Gardens Locos criminal street gang. Garibay told the informant the victim was a member of the rival Walnut Street gang. When an officer walked Franco past Garibay's cell, Garibay identified Franco to the informant as his "homie."

Franco's and Garibay's phones' cell tower usage around the time of the shooting was consistent with the movement of the gray Nissan seen in the surveillance videos near the Gage Bridge.

DISCUSSION

Summary Denial of the Section 1170.95 Petition Without Appointment of Counsel Was Appropriate Because Appellant Was Ineligible for Relief as a Matter of Law

A. Relevant proceedings

In his petition for resentencing appellant averred: (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under the theory of felony-murder or the natural and probable consequences doctrine; (2) he was convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine; (3) he could not now be convicted of first or seconddegree murder because of the changes made to sections 188 and 189, which became effective on January 1, 2019; (4) he was not the actual killer; (5) he did not, with intent to kill, aid or abet the actual killer; (6) he was not a major participant in the felony, nor did he act with reckless indifference to human life; and (7) he was convicted of second degree murder under the natural and probable consequences doctrine and could not now be convicted of murder because of the changes made to sections 188 and 189. Appellant supported his petition with numerous minute orders from his trial and requested that the court appoint counsel.

On March 11, 2020, the superior court summarily denied the petition without a hearing and without appointing counsel. Stating that it "clearly remember[ed] this case," the court drew from the preliminary hearing transcript to describe the facts of the case: "The petitioner dropped off the co-defendant who went up the stairs to the roadway with the sole purpose of shooting the victims. When co-defendant reached the top of the stairs he ambushed the victims. Then the co-defendant ran back down the stairs where petitioner picked him up." While in custody, the shooter (codefendant) told an informant "he was dropped off by petitioner on one side of the bridge went up the stairs and shot the victims, ran across the bridge to the opposite side where he was picked up by petitioner."

The court denied the petition, finding that "[t]hese facts do not bring into play the criteria of 1170.95(a)." The court explained that appellant "was clearly an aider and abettor," and the People had not proceeded under a felony-murder theory or the natural and probable consequences doctrine. The court reiterated that it had reviewed the transcript of the preliminary hearing in reaching its decision.

B. The trial court may deny a section 1170.95 petition in the prima facie stage of review without first appointing counsel if the record of conviction demonstrates the petitioner is ineligible for relief as a matter of law.

The Legislature enacted Senate Bill No. 1437 to "amend 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); People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) To accomplish this objective, Senate Bill No. 1437 amended section 188, subdivision (a)(3), defining malice, to require that all principals to murder must act with express or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) The amendment further provides that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019, S258175; People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020, S260598 (Lewis).) The Legislature also amended section 189 to include the new requirement that a participant in a specified felony during which a death occurs may be convicted of murder for that death only if it is proved that the defendant was the actual killer, an aider and abettor to the murder who acted with the intent to kill, or a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3; § 189, subd. (e)(1)-(3).)

In addition to these amendments, Senate Bill No. 1437 added section 1170.95 to provide a procedure by which those convicted of felony murder or murder under a natural and probable consequences theory may seek retroactive relief if they could no longer be convicted of murder because of the changes to sections 188 or 189. (Martinez, supra, 31 Cal.App.5th at pp. 722-723.)

If the petition meets the requirements of section 1170.95, subdivisions (a) and (b), the superior court undertakes a two-step prima facie analysis set forth in subdivision (c) before an order to show cause may issue.³ (People v. Nunez (2020) 57 Cal.App.5th 78, review granted Jan. 13, 2021, S265918 (Nunez); People v. Verdugo (2020) 44 Cal.App.5th 320, 327-328, review granted Mar. 18, 2020, S260493 (Verdugo); Lewis, supra, 43...