People v. Soto
| Decision Date | 09 July 2020 |
| Docket Number | H047581 |
| Citation | 265 Cal.Rptr.3d 571,51 Cal.App.5th 1043 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Martin SOTO, Defendant and Appellant. |
Attorney for Defendant/Appellant Martin Soto: Paul Couenhoven under appointment by the Court of Appeal
Attorneys for Plaintiff/Respondent The People: Xavier Becerra, Attorney General of California, John H. Deist, Deputy Attorney General
A jury found defendant Martin Soto guilty of second degree murder in 1996. This court affirmed that conviction in 1997.1 Soto now appeals from a November 2019 order denying his petition to vacate his murder conviction and be resentenced under Penal Code section 1170.95.2
In this appeal, Soto's appointed counsel filed a brief that raised no issues pursuant to People v. Serrano (2012) 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706. Soto filed a supplemental brief on his own behalf. After reviewing the briefs and record, we requested supplemental briefing on whether the trial court erred in not issuing an order to show cause where its order denying Soto's petition relied on information drawn from the record of conviction and, if so, whether any error was harmless.
Upon review of the parties' supplemental briefs, we now address the merits of Soto's appeal and conclude that it fails. We therefore affirm the trial court's order denying Soto's petition to vacate his murder conviction.
The facts elicited at Soto's trial showed that, on the night of May 4, 1995, Danny Garcia and Kurt Hintz had an argument over money and a CD. Soto and Garcia got into a car. Soto was driving, Garcia was in the passenger seat. Garcia shot Hintz, and the car sped away. Hintz later died from the gunshot wound.
Alvin Bales, who provided information to the police in hopes of leniency in a pending drug case against him, testified that he knew Soto. Bales stated that a week after the shooting, Soto told him that Garcia had been in an argument with a man on Leigh Avenue over the man's refusal to pay Garcia. Garcia had asked Soto what to do, and Soto had responded, " ‘just shoot the motherf-----.’ " Garcia then shot the man.
Soto did not testify. His primary defense at trial was directed at Bales's credibility.
At Soto's trial, the jury convicted him of second degree murder (§§ 187–189) and found true an allegation that the murder was perpetrated by means of discharging a firearm from a motor vehicle. (§ 190, subd. (c).)
In its final instructions to the jury, the trial court instructed on first and second degree murder, voluntary manslaughter, and involuntary manslaughter. The instructions on murder included definitions for express and implied malice. ( CALJIC No. 8.11.) Of particular relevance to this appeal, the instructions defined implied malice as 4
As to first degree murder, the trial court instructed such crime is committed if the murder was a willful, deliberate, and premeditated killing with express malice (i.e., an intent to kill) or perpetrated by means of intentionally discharging a firearm from a motor vehicle at a person outside of the vehicle when the perpetrator specifically intended to inflict death.
The jury instructions defined second degree murder as an unlawful killing manifesting an intention to kill, but without deliberation and premeditation, or an unlawful killing resulting from an intentional act, the "natural consequences" of which are "dangerous to human life" and which "was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." ( CALJIC No. 8.31.) The trial court instructed further regarding the punishment provision for second degree murder under former section 190, subdivision (c).5
With respect to first and second degree murder, the trial court did not instruct the jury that Soto could be liable for these crimes either as the natural and probable consequence of the commission of another crime or based upon the felony murder rule.
Regarding involuntary manslaughter, the trial court instructed that Soto could be found guilty of that crime if, among other things, the People proved it "was a natural and probable consequence of the commission" of "grossly negligent discharge of a firearm, exhibiting a firearm, assault with a firearm, or assault" and Soto aided and abetted such crimes committed by "[a] co-principal."6
In addition, the trial court instructed the jury on principles of aider and abettor liability. The instructions informed the jury that a person aids and abets the commission of a crime when he, "with knowledge of the unlawful purpose of the perpetrator" and "with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice, aids, promotes, encourages or instigates the commission of the crime."
On January 10, 2019, Soto, acting in propria persona, filed a petition for resentencing pursuant to section 1170.95 (petition). He declared that he was convicted of second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine and that he could not now be convicted of murder under the changes made to sections 188 and 189, effective January 1, 2019.7 Upon request, the trial court appointed counsel to represent Soto on his petition.
On March 11, 2019, the district attorney filed an opposition to Soto's petition. The district attorney maintained that Senate Bill No. 1437 (2017-2018 Reg. Sess.)—which added section 1170.95 and amended sections 188 and 189 (Stats. 2018, ch. 1015)—is unconstitutional.8 The district attorney further asserted Soto could not make the prima facie showing for resentencing required by section 1170.95, subdivision (a)(3), because he was unable to demonstrate he could not be convicted of murder under current law. The district attorney argued that Soto was convicted of aiding and abetting murder with malice and the jury was never instructed on the natural and probable consequences or felony murder doctrine as to first or second degree murder. Rather, the trial court had instructed the jury on the natural and probable consequences doctrine only as to the lesser offense of involuntary manslaughter. The district attorney attached to his opposition a copy of the endorsed filed-stamped instructions provided to the jury at Soto's trial and a filed-stamped copy of this court's opinion from Soto's direct appeal.
On June 17, 2019, Soto, through his appointed counsel, filed a reply to the district attorney's opposition. Soto maintained Senate Bill No. 1437 is constitutional, and he had satisfied the requisite prima facie showing for relief. He argued the jury did not make an explicit finding regarding malice and implied malice was "imputed to him by his participation as an aider and abettor of Danny Garcia, the actual killer of Hintz." He asserted that no evidence was presented at trial to demonstrate he had an intent to commit or to encourage or facilitate "life-endangering conduct" or "had knowledge of Garcia's lethal purpose." Further, Soto contended he "was not a direct aider and abettor, since there was no evidence he had the requisite specific intent to kill." He claimed he "was convicted as a natural and probable consequence of his participation as a facilitator in the crime."
On November 15, 2019, the trial court held a hearing on Soto's petition.9 The trial court noted it had reviewed the pleadings, the jury instructions, and this court's opinion. The trial court said it "thought that the implied malice came from [B]ales'[s] statement about what Soto had said" and Bales's statements "satisfied the requirement or helped satisfy the requirement of malice." Declining to issue an order to show cause, the trial court concluded Soto "is ineligible for resentencing because he was convicted of murder in accordance with the current law." The trial court denied Soto's petition, and Soto has appealed that decision to this court.
Soto's appointed appellate counsel filed a Serrano brief in this court that raised no issues. Soto filed a supplemental brief in propria persona. In his brief, Soto maintains that he was prosecuted under the now invalid natural and probable consequences doctrine, citing the jury instructions regarding malice, second degree murder, and involuntary manslaughter. He further asserts that Bales's testimony was perjured and the evidence presented at his trial "simply doesn't show the needed malice or specific intent to kill" the victim.
Upon this court's request, appellate counsel and the Attorney General filed supplemental briefs on the questions described ante. Having reviewed the supplemental briefs, we now address the merits of Soto's appeal.
Soto contends the trial court erred when it relied on facts gleaned from this court's 1997 opinion to deny his petition. He further contends the error is not harmless because he was in fact convicted as an aider and abettor of murder on a natural and probable consequences theory and could not be convicted of murder on that basis under current law. He thus asks us to reverse the denial of his petition and remand the case for an evidentiary hearing.
The Attorney General maintains that the trial court correctly denied Soto's petition summarily because the " ‘readily ascertainable facts from the record’ " show that Soto's second degree murder conviction was not based on the felony-murder doctrine or the natural and probable consequences doctrine, rather solely on Soto's role as an aider and abettor of the killer, Garcia.
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