People v. Murillo

• Decision Date: 01 September 2020
• Docket Number: B297546
• Citation: 54 Cal.App.5th 160,268 Cal.Rptr.3d 457
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose MURILLO, Defendant and Appellant.

54 Cal.App.5th 160

268 Cal.Rptr.3d 457

The PEOPLE, Plaintiff and Respondent,

v.Jose MURILLO, Defendant and Appellant.

B297546

Court of Appeal, Second District, Division 1, California.

Filed September 1, 2020

George L. Schraer, San Diego, 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, Assistant Attorney General, Idan Ivri and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

Mark Zahner (California District Attorneys Association); Michael A. Hestrin, District Attorney (County of Riverside), Alan D. Tate, Managing Deputy District Attorney, Jesse Male, Deputy District Attorney; Jason Anderson, District Attorney (County of San Bernardino), and James R. Secord, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of the Plaintiff and Respondent.

ROTHSCHILD, P. J.

Defendant and appellant Jose Murillo challenges the trial court's denial of his petition under Penal Code section 1170.95¹ for resentencing on his murder conviction. A jury convicted Murillo in 1993 of murder on the basis of his participation in a burglary in which a cohort shot and killed a victim. The jury also found true a felony-murder special circumstance (§ 190.2, subd. (a)(17)), concluding beyond a reasonable doubt either that Murillo urged his cohort to kill the victim, or that he was a major participant in the burglary who acted with reckless indifference to human life. The trial court denied the petition because, on the basis of this finding, Murillo could still be convicted of murder and would be ineligible for resentencing under section 1170.95.²

Murillo contends that the special circumstance finding is no longer valid in light of our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks ) and People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 ( Clark ), which clarified the meaning of "major participant" and "reckless indifference to human life." We affirm the trial court's order on two grounds: First, the proper procedure for collaterally challenging a special circumstance finding is a petition for habeas corpus, not a petition under section 1170.95. (See People v. Galvan (2020) 52 Cal.App.5th 1134, ––– Cal.Rptr.3d –––– ( Galvan ).) Second, the record of conviction shows as a matter of law that the special circumstance finding is valid even under Banks and Clark .

FACTS AND PROCEEDINGS BELOW

In a prior opinion in Murillo's direct appeal (People v. Murillo (July 28, 1994, B078813) [nonpub. opn.] (Murillo )), this court described the facts of this case, beginning with the prosecution's case:

"During the evening of April 12, 1992, 15-year-old Mirna G., 14-year-old Gabriel N. and defendant gathered at a park with a number of others. At some point, it was decided that a group of these individuals would do a ‘beer run,’ meaning to take beer from a store without paying for it. Mirna, Gabriel, defendant and someone named Peeker made the run. As they drove, they decided Gabriel and defendant would enter the store and get the beer; Mirna would hold the door for them and Peeker would remain in the automobile, ready to drive. Defendant showed the others a handgun.

"After trying several stores, the group settled on one at approximately 11:00 p.m. After the group parked in the Mobil gasoline station, defendant, Gabriel and Mirna walked to the store. As previously arranged, Mirna stayed at the door, while defendant and Gabriel entered the store. Gabriel then walked back and told Mirna to get the beer while he held the door. Defendant and Mirna took several cases of beer and walked out of the store with it; Gabriel followed. As they left the store, they noticed Peeker was putting gasoline into the automobile; they began to run.

"Rocco Pugliese (Pugliese), Eric Hice (Hice) and Chris Brown (Brown), who were standing in the store's parking lot, saw defendant and Mirna running away with something in bags, followed by Gabriel, then saw the store clerk make a gesture that led them to believe there had been a crime. Believing the store had been robbed, Pugliese and Brown pursued the trio who had emerged from the store.

"Defendant, Gabriel and Mirna ran across the street; as they ran, defendant and Mirna dropped the beer. Brown caught up with Mirna and pulled her hair, causing her to fall. She got up and ran in a direction different from that taken by defendant and Gabriel. Pugliese pursued her, while Brown pursued Gabriel and defendant, going over a wall after them. As Mirna neared a yard down the street, she heard defendant tell Gabriel, ‘Shoot him.’ This was followed by a gunshot. Pugliese found Brown lying on the grass in a yard beyond the brick wall Brown had scaled; he went for help. Brown died from a single gunshot wound

which perforated the aorta, causing him to bleed to death.

"At this point, Mirna, defendant and Gabriel met and attempted to leave the neighborhood. Approximately 30 minutes later, Mirna saw defendant trying to hide a gun in the bushes in front of a house near some railroad tracks. When the trio reached the tracks, Gabriel said he shot someone once to scare him; he said he should have shot the man in the head instead.

"Defendant was arrested on Apri1 14, 1992. As he was escorted to the police vehicle, he said, ‘The white boy shouldn't have tried to be a hero.’ He also said he had ‘pulled lots of jobs,’ and ‘when I pull them, I pull them clean;’ he was not going to jail, for he ‘was going to take care of the guy that said he shot the white guy.’ During a subsequent police interview, defendant admitted telling Gabriel, ‘Shoot him.’ He also said Gabriel was very nervous; he did not want to give him the gun because Gabriel might shoot someone with it. After he initially told Gabriel to shoot in the air if they were pursued, Gabriel said he would just shoot the pursuer." (Murillo , supra , B078813.)

The opinion went on to summarize the defense evidence:

"Defendant admitted his complicity in the burglary. He acknowledged he belonged to the South Side Reseda street gang. According to defendant, when the group planned the burglary, he was unarmed. Someone gave him a handgun as protection should they encounter rival gang members. Defendant had shot at rival gang members on at least one prior occasion, but he did not intend to use the gun during the burglary.

"As the group drove around looking for the best store to burgle, Gabriel asked defendant what to do if someone pursued them. Defendant said he would shoot in the air. As they left one store they had investigated, Gabriel asked for the gun. Defendant refused to give it to him, explaining he did not want his fellow gang members ‘to say we gave you the gun, why did you lose it.’ Gabriel repeated his request for the gun often enough that defendant grew tired of the debate and gave him the gun. He said nothing further about how the gun should be used.

"As the group fled after stealing the beer, Brown pursued them. When Brown drew near after they had scaled a wall and entered a yard, defendant told Gabriel to shoot. He thought Gabriel would shoot in the air. After Gabriel fired, defendant did not believe anyone had been shot. Gabriel later said he shot only to scare his pursuer.

"Defendant learned someone had been shot during the pursuit after overhearing a conversation on the following evening. When defendant was arrested, he was angry at being accused of the shooting and at Gabriel for ‘snitching.’ According to defendant, he never said anything at the time of his arrest about Brown trying to be a hero." (Murillo , supra , B078813.)

A jury convicted Murillo of first degree murder (§ 187) and found true a felony murder special circumstance. (§ 190.2, subd. (a)(17).) The jury also convicted him of one count of burglary (§ 459) and found true an allegation that a principal was armed in the commission of both the murder and the burglary. (§ 12022, subd. (a)(1).) The trial court sentenced Murillo on the murder count to life in prison without the possibility of parole. The court suspended the sentence for the burglary pursuant to section 654.

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished the natural and probable consequences doctrine in cases of murder, and limited the application of the felony murder doctrine. Under section 189, subdivision (e), as amended by Senate Bill No. 1437, a defendant is guilty of felony murder only if he: actually killed the victim; directly aided and abetted or solicited the killing, or otherwise acted with the intent to kill; or "was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e)(3); People v. Lamoureux (2019) 42 Cal.App.5th 241, 247–248, 255 Cal.Rptr.3d 253.) The legislation also enacted section 1170.95, which established a procedure for vacating murder convictions for defendants who would no longer be guilty of murder because of the new law and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)

Murillo filed a petition for resentencing on March 29, 2019. The trial court summarily denied the petition on the ground that the jury's special circumstance finding rendered him ineligible for resentencing. (See §§ 189, subd. (e)(3), 1170.95, subd. (a)(3).) The court also denied the petition on the ground that Senate Bill No. 1437 violates several provisions of the California Constitution.³

DISCUSSION

A. Background on Section 1170.95

Section 1170.95 allows a defendant serving a sentence for felony murder who would not be guilty of murder because of the new law to petition for resentencing. The statute requires a defendant to submit a petition affirming that he meets three criteria of eligibility: (1) He was charged with murder in a manner "that allowed the...