People v. Rivera

• Decision Date: 19 March 2021
• Docket Number: A158284
• Citation: 62 Cal.App.5th 217,276 Cal.Rptr.3d 390
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Miguel Angel RIVERA, Jr., Defendant and Appellant.

62 Cal.App.5th 217

276 Cal.Rptr.3d 390

The PEOPLE, Plaintiff and Respondent,

v.Miguel Angel RIVERA, Jr., Defendant and Appellant.

A158284

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

Filed March 19, 2021

Janice M. Lagerlof, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Julia Y. Je, Deputy Attorney General, for Plaintiff and Respondent.

Humes, P.J.

A grand jury indicted defendant Miguel Rivera and his co-defendant, Jerry Coneal, for murder with accompanying special-circumstance allegations of lying in wait and committing the crime for the benefit of a street gang. Rivera pleaded no contest to second degree murder and admitted a prior strike in exchange for the dismissal of the special-circumstance allegations and certain other enhancements. In 2017, he was sentenced to a total term of 35 years to life in prison.

The Legislature subsequently amended Penal Code sections 188 and 189 to limit liability for murder under the doctrines of felony murder and natural and probable consequences, and it established a procedure, under newly enacted Penal Code section 1170.95, for eligible defendants to petition to have their murder convictions vacated and be resentenced.¹ Rivera filed a petition for relief under section 1170.95, and the trial court appointed counsel for him. After receiving briefing from the parties, the court denied the petition on the basis that Rivera failed to make a prima facie showing of eligibility for relief.² Specifically, the court determined that he "entered a plea to second degree murder with malice" and nothing in the record of conviction supported the conclusion that the murder was "anything other than an intentional killing in which [he] harbored such malice."

On appeal, Rivera argues that the trial court erred in concluding that his plea precluded his eligibility for resentencing under section 1170.95 as a matter of law. We agree. We hold that a defendant who entered a plea to murder "with malice aforethought" is not categorically incapable of making a prima facie showing of eligibility for relief under section 1170.95, subdivision (c) ( section 1170.95(c) ), because such a plea is not necessarily an admission that the crime was committed with actual malice. We also hold that a defendant who stipulated to a grand jury transcript as the factual basis of the plea may make a prima facie showing of eligibility for relief by identifying a scenario under which he or she was guilty of murder only under a now-invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario. We disagree with People v. Nguyen (2020) 53 Cal.App.5th 1154, 268 Cal.Rptr.3d 306 ( Nguyen ) to the extent it holds otherwise.

Applying these principles here, we conclude that the trial court erred in ruling that Rivera failed to make a prima facie showing of eligibility for relief under section 1170.95(c). Accordingly, we reverse and remand for the trial court to issue an order to show cause and conduct further proceedings to determine whether resentencing is warranted.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

In October 2012, Christopher Baker was shot to death in East Palo Alto. After hearing evidence tending to suggest that Rivera was present when Coneal, a fellow gang member, shot Baker, and drove Coneal to and from the scene, a grand jury indicted Rivera and Coneal for Baker's murder.³ The operative indictment's only count alleged that Coneal and Rivera "did willfully, unlawfully, and with malice aforethought murder [Baker] ... in violation of ... section 187(a), a felony," with accompanying gang and lying-in-wait special circumstances as to both defendants. The indictment also alleged other gang-related enhancements as to both defendants, one that the offense was committed to benefit a gang and the other that a principal personally and intentionally discharged a firearm causing death during such an offense. Only Coneal, however, was alleged to have personally and intentionally discharged a firearm causing death.⁴ Finally, the indictment alleged various enhancements against Rivera based on a prior conviction of attempted burglary.⁵

In July 2017, as part of a plea agreement, Rivera entered a plea of no contest to second degree murder, admitted the offense was committed to benefit a gang, and admitted the strike. The remaining allegations were dismissed. Later that month, the court sentenced Rivera to 35 years to life in prison, composed of a term of 15 years to life for murder, doubled because of the strike, and a consecutive term of five years for the prior conviction of a serious felony.⁶

Before the trial court took Rivera's plea to murder, the prosecutor confirmed that "[t]he People would be willing to stipulate that it's murder in the second degree." The court then asked, "Mr. Rivera, what is your plea to Count 1, that on or about October 5, 2012, you did willfully, unlawfully[,] and with malice aforethought murder [Baker] ... in violation of Penal Code section 187(a), a felony?" Rivera responded, "No contest."

After Rivera admitted the remaining allegations attached to the murder count, the trial court asked his trial counsel whether counsel "stipulate[d] to a factual basis" for the plea. Counsel responded affirmatively, indicating that he did so based on the transcript of the grand jury proceedings.⁷ The court "accept[ed] the stipulated factual basis" and found Rivera guilty of second degree murder based upon the plea.

In April 2019, shortly after section 1170.95 became effective, Rivera filed a petition claiming he was eligible for relief because he entered a plea to murder "in lieu of going to trial because [he] believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine." The trial court appointed counsel (the same attorney who represented Rivera when he entered his plea) and ordered the People to file a response to the petition and Rivera to file a reply to the People's response.

The People argued that Rivera failed to make a prima facie showing of eligibility for relief because the record demonstrated that the prosecution proceeded on "a single basis of liability reliant on a theory that [Rivera] jointly possessed malice aforethought with ... Coneal when they murdered ... Baker," and Rivera identified nothing to indicate otherwise. The People also filed a request for judicial notice of various documents from the underlying criminal case, including the reporter's transcript from the grand jury proceedings.

In reply, Rivera argued that he could not now be convicted of murder "because of the elimination of the natural and probable consequences doctrine." Pointing out that there was no dispute Coneal was the actual shooter, Rivera highlighted the lack of evidence that he shared or knew of Coneal's intent, that he knew Coneal had a gun, or that he assisted Coneal in any way except by driving the car. Rivera drew a parallel to the facts in In re R.G. (2019) 35 Cal.App.5th 141, 247 Cal.Rptr.3d 24, which involved a juvenile convicted of second degree murder under the natural and probable consequences doctrine based on his intent to participate in a gang assault that ended in murder. ( Id. at p. 146, 247 Cal.Rptr.3d 24.)

After receiving the parties’ briefing, the trial court (the same judge who took Rivera's plea) held a hearing on the petition in July 2019. The court granted the People's request for judicial notice of documents previously filed in the case, with the exception of the grand jury transcript. In declining the request as to the transcript, the court stated, "I can't find any basis on which the court should take judicial notice of that uncontested testimony." The court then denied the petition for failure to make a prima facie showing of eligibility for relief on the basis that Rivera was charged with and "entered a plea to second degree murder with malice." In so ruling, the court emphasized that despite its familiarity "with the facts underlying what led to the murder ..., [it was] not taking into consideration [its] knowledge of any of that in evaluating whether ... Rivera ... made a prima facie case for relief."

II. DISCUSSION

Rivera argues that the trial court erred by denying his petition on the basis that his conviction precluded relief under section 1170.95 as a matter of law, because his plea to second degree murder did not "involve[ ] an admission of express malice and intent to kill." He contends that he is entitled to an evidentiary hearing on whether he could still be convicted of second degree murder. We agree.

A. Senate Bill No. 1437 and Section 1170.95

" ‘Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." ( § 188, subd. (a)(3).)’ [Citation.] The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she ‘was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2,’ or the victim was a peace officer performing his or her duties. ( § 189, subds. (e) & (f).)" ( People v. Daniel (2020) 57 Cal.App.5th 666, 672, 271 Cal.Rptr.3d 591, review granted Feb. 24, 2021, S266336 ( Daniel ).)

"Senate Bill No. 1437 also enacted section 1170.95, which authorizes ‘[a] person convicted of felony murder or murder under a natural and...