People v. Farfan

71 Cal.App.5th 942

286 Cal.Rptr.3d 749

The PEOPLE, Plaintiff and Respondent,

v.Edgar Alejandro FARFAN, Defendant and Appellant.

B309786

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

Filed November 19, 2021

As Modified on Denial of Rehearing November 23, 2021

Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

LUI, P. J.

Edgar Alejandro Farfan appeals the summary denial of a petition for resentencing under Penal Code ¹ section 1170.95.

Appellant was convicted in 2016 of the first degree murder of Kamell Heno ( § 187, subd. (a) ; count 1), kidnapping to commit another crime ( § 209, subd. (b)(1) ; count 2), and robbery ( § 211 ; count 3). The jury found true the special circumstance allegation that the murder was committed while appellant was engaged in the commission of a robbery. ( § 190.2, subd. (a)(17).) The trial court sentenced appellant to life without the possibility of parole on count 1, plus five years for the robbery conviction. (People v. Farfan (Feb. 8, 2018, mod. Mar. 2, 2019, B277516) [nonpub. opn.] (Farfan I ).) This court affirmed the judgment on appeal. (Ibid .)

In January 2019, appellant filed a petition for recall and resentencing under section 1170.95 (the "2019 petition"). Without appointing counsel, the superior court summarily denied the petition on January 28, 2019, on the grounds that the jury was not instructed on the natural and probable consequences doctrine and the jury's true finding on the special circumstance allegation precludes relief under section 1170.95 as a matter of law. On May 17, 2019, the superior court modified its January 28, 2019 memorandum of decision with a summary of this court's analysis and rejection of petitioner's substantial evidence challenge to the special circumstance finding under 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 ).

Appellant did not appeal the superior court's order, but filed a second petition for section 1170.95 relief on September 16, 2020 (the "2020 petition"). On September 29, 2020, appellant filed a motion for reconsideration of the denial of his 2019 petition.

The superior court denied both the motion for reconsideration and the 2020 petition on October 19, 2020, and appellant appealed.

As a preliminary matter, we reject respondent's contention that the second 1170.95 petition from which this appeal arises is procedurally barred as a successive petition. In the 2020 petition, appellant cited new legal authority which undermined the basis for the superior court's denial of the 2019 petition. Neither the express language of section 1170.95 nor the stated purpose of the legislation supports limiting access to relief under section 1170.95 as advocated by respondent where, as here, the subsequent petition rested on new legal authority which challenged the basis for the superior court's summary denial of the previous petition.

Turning to the merits of the appeal, we conclude that because appellant filed a facially sufficient section 1170.95 petition, the superior court erred in denying the petition without first appointing counsel. (See People v. Lewis (2021) 11 Cal.5th 952, 967, 970, 281 Cal.Rptr.3d 521, 491 P.3d 309 ( Lewis ).) The error, however, was harmless. ( Id . at pp. 970–972, 974–975, 281 Cal.Rptr.3d 521, 491 P.3d 309.) In finding the felony-murder special circumstance true, the jury necessarily found appellant either acted with intent to kill or was a major participant in the robbery who acted with reckless indifference to human life. This finding establishes that appellant is ineligible for section 1170.95 relief as a matter of law. ( People v. Simmons (2021) 65 Cal.App.5th 739, 746–747, 749, 280 Cal.Rptr.3d 205, review granted Sept. 1, 2021, S270048 ( Simmons ).)

We also find no merit to appellant's claim that he has a constitutional right to a new jury determination that he was a major participant who acted with reckless indifference to human life under Banks and Clark before his section 1170.95 petition may be denied. A jury has already made that determination. When appellant's jury found the felony-murder special circumstance true, it necessarily found beyond a reasonable doubt that appellant either acted with intent to kill or was a major participant in the robbery who acted with reckless indifference to human life as those concepts were explained in Banks and Clark . (See People v. Allison (2020) 55 Cal.App.5th 449, 457, 269 Cal.Rptr.3d 570 (Allison ).)

Moreover, in his direct appeal from the conviction, appellant challenged the jury's special circumstance finding on substantial evidence grounds. We rejected the challenge, holding, "Under the framework established by our Supreme Court 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 ), we find sufficient evidence to show that defendants acted with reckless indifference to human life and thus sufficient evidence to support the true finding on the felony-murder special-circumstance allegation." (Farfan I, supra , B277516.)

The mere filing of a section 1170.95 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings. To the contrary, "[n]othing in the language of section 1170.95 suggests it was intended to provide redress for allegedly erroneous prior factfinding....The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved." ( Allison, supra , 55 Cal.App.5th at p. 461, 269 Cal.Rptr.3d 570.)

Finally, a petitioner is not entitled to a jury trial at any point in the section 1170.95 process. Indeed, courts have uniformly held that section 1170.95 does not implicate the Sixth Amendment right to a jury trial. (See, e.g., People v. James (2021) 63 Cal.App.5th 604, 608, 609, 277 Cal.Rptr.3d 796, and cases cited.)

FACTUAL BACKGROUND²

Kamell Heno was employed as a delivery driver for Cartons to Go, a company that bought and sold cigarettes. On December 4, 2014, Heno was scheduled to deliver cigarettes worth $217,000 to Cartons to Go in LaVerne. That morning, driving a large white box truck, Heno picked up the cigarettes from Giant Wholesale in Sunland and Costco in Burbank, but he never arrived in LaVerne.

Around 3:30 that afternoon, Heno's truck was discovered parked on the 10200 block of South Grand Avenue in the city of Los Angeles. Only about 10 percent of the cigarettes Heno had collected that morning remained in the truck's cargo area. Heno was found on the floor of the truck with a red stained cloth covering his head. His face was wrapped in duct tape, which covered his eyes and mouth. He had two projectile head wounds from a BB gun in addition to multiple abrasions, lacerations, and bruises on his head, neck, and upper extremities. Heno was pronounced dead at the scene. An autopsy indicated the cause of death to be asphyxiation.

Prior to December 4, appellant, his brother Josue Farfan (Josue), and Josue's wife, Jennifer Medina, agreed to rob a delivery truck of its cargo of cigarettes. In accordance with the plan, on the morning of December 4, appellant drove Medina and Josue in his SUV to Cigar Cartel, where they parked and waited until the white box truck driven by Heno pulled out. Appellant followed the truck as it picked up its cargo. When the truck left Costco, appellant followed it onto the freeway and hit Heno's truck with his SUV to force it to stop.

The truck pulled over, and Heno got out. Appellant exited the SUV carrying a BB gun and shoved Heno into the passenger side of the truck. Josue got into the truck and the brothers drove away with Heno while Medina followed in the SUV. Eventually, the truck exited the freeway, drove into a neighborhood and parked. Appellant, Josue, and Medina filled the SUV with cigarettes from the truck and drove away, leaving Heno in the cab of his truck.

DISCUSSION

I. Appellant's Second Petition for Relief Under Section 1170.95 Is Not Procedurally Barred as a Successive Petition

Respondent contends that the section 1170.95 petition appellant filed in 2020, which is the basis of this appeal, is procedurally barred as a successive petition. We disagree.

As California courts have grappled with the interpretation and application of section 1170.95 ’s procedures for obtaining resentencing relief since the legislation took effect on January 1, 2019, various splits of authority have emerged on several issues. Among those issues are three presented in the instant appeal: (1) May the superior court consider the record of conviction in determining whether the petitioner has made a prima facie showing of eligibility for relief under section 1170.95, subdivision (c) ? (Yes.) (2) May the superior court summarily deny a facially sufficient petition for failure to make the prima facie showing without first appointing counsel? (No.) And (3) Does a jury's felony-murder special circumstance finding under section 190.2, subdivision (a)(17) preclude a prima facie showing of eligibility under section 1170.95, subdivision (c) ? The California Supreme Court has answered the first two questions in Lewis , supra , 11 Cal.5th at pages 957, 967, 970, 972, 281 Cal.Rptr.3d 521, 491 P.3d 309, but the third issue remains pending before the Supreme Court in People v. Strong , review granted March 10, 2021, S266606 (Strong ) ["Does a felony-murder special circumstance finding ( Pen. Code, §...