P. v. Morales

Filed 3/4/20 P. v. Morales CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE MORALES,
Defendant and Appellant.
B297638
(Los Angeles County
Super. Ct. No. BA204828)
APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.
Richard Miggins, 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, Acting
Assistant Attorney General, Idan Ivri and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________

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Jose Morales appeals from an order denying his petition
for resentencing under Penal Code section 1170.95.1 Because
the court properly concluded that Morales is not eligible for relief
under that statute, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Morales of two counts of first degree
murder and one count of robbery, among other crimes. The jury
also found true the special circumstance under section 190.2,
subdivision (d), that the murders occurred during the commission
of a robbery, that Morales was a “major participant in the
robbery,” and that he “acted with reckless indifference to human
life.” (People v. Morales (June 28, 2005, B175482) [nonpub. opn.];
see § 190.2, subds. (a)(17) & (d).) The jury made these finding
under a beyond the reasonable doubt standard. (People v.
Morales, supra, B175482; see § 190.4, subd. (a) [special
circumstance finding requires proof beyond a reasonable doubt];
People v. Clair (1992) 2 Cal.4th 629, 663 [same].) On his direct
appeal, Morales challenged the sufficiency of the evidence
supporting these findings. This court rejected his arguments and
held that the findings were supported by substantial evidence.
(People v. Morales, supra, B175482.)
In 2016 Morales filed in the superior court a petition
for writ of habeas corpus in which he challenged the jury’s
section 190.2, subdivision (d) special circumstance finding based
upon then-recent judicial interpretation of that section. After
receiving an informal response from the district attorney and a
reply filed by Morales, the court denied the petition, concluding
1 Subsequent statutory references are to the Penal Code.

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that “[t]he jury’s finding that [he] was a major participant in the
robbery-murders was fully justified.”
On January 2, 2019, Morales filed in the superior court
a petition for resentencing under Penal Code section 1170.95.
Morales alleged: He was not the actual killer; he did not, with
the intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist that actual killer in the commission of the
murder; and he “was not a major participant in the felony” or “did
not act with reckless indifference to human life during the course
of the crime or felony.”
On January 17, 2019, the court issued a minute order
stating: “The court re-appoints the office of alternate public
defender.” The court also directed the people to file a response
to the petition.
On February 8, 2019, the People filed an opposition to
Morales’s petition. Based on our opinion affirming his conviction
and the superior court’s denial of Morales’s habeas petition,
the People argued that “defendant is factually ineligible for
relief under [s]ection 1170.95.” The People also argued that
section 1170.95 was unconstitutional on various grounds.
No one appeared, or filed a written reply, on behalf of Morales.
On March 11, 2019, the court issued an order denying the
petition, stating: “The jury and the Court of Appeal agreed that
Morales was a major participant in the murders in this case and
that he acted with reckless disregard for life in committing those
crimes. Morales is not eligible for resentencing under Penal Code

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[sections] 1170.95 and 189[, subdivision] (e)(3).” The court
further declared that section 1170.95 was unconstitutional.2
Morales filed a timely notice of appeal.
DISCUSSION
Morales contends that he alleged the facts required under
section 1170.95, the “allegations stated a prima facie claim for
re-sentencing,” and the court therefore erred in denying his
petition. As we explain below, the court may consider the record
of conviction in evaluating whether a petitioner has made a
prima facie showing of eligibility under section 1170.95 and the
record in this case establishes Morales’s ineligibility as a matter
of law. We therefore reject Morales’s argument.
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, among
other changes, amended section 189 to modify the felony-murder
rule. As a result of the amendment, a “participant in the
perpetration or attempted perpetration of ” certain enumerated
felonies, including robbery, “in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person
was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled,
2 On appeal, the Attorney General agrees with Morales
that section 1170.95 is constitutional and does not seek
affirmance of the order on that ground. Because we affirm the
order on the ground that Morales is not eligible for relief under
the statute, we do not reach the constitutional issues. (See Santa
Clara County Local Transportation Authority v. Guardino (1995)
11 Cal.4th 220, 230–231; People v. Barasa (2002) 103 Cal.App.4th
287, 292 & fn. 4.)

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commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶]
(3) The person 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.” (§ 189, subd. (e).)3 The last
of these is substantively identical to “the standard for finding
a special circumstance under section 190.2[, subdivision] (d).”
(In re Taylor (2019) 34 Cal.App.5th 543, 561; see also People v.
Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419 [where jury
made findings under section 190.2, subdivision (d) that the
defendant was a major participant in underlying felony and
acted with reckless indifference for human life, it also made
the “requisite findings necessary to sustain a felony-murder
conviction under” Senate Bill No. 1437].)
Senate Bill No. 1437 also added section 1170.95, which
permits a person convicted of murder under a felony murder
theory or the natural and probable consequences doctrine to
petition the court to have the murder conviction vacated and to
3 Subdivision (d) of section 190.2 sets forth a special
circumstance that necessitates the penalty of death or
imprisonment for life without the possibility of parole for
“every person, not the actual killer, who, with reckless
indifference to human life and as a major participant, aids,
abets, counsels, commands, induces, solicits, requests, or assists
in the commission of a felony enumerated in paragraph (17)
of subdivision (a) which results in the death of some person
or persons, and who is found guilty of murder in the first
degree therefor, . . . if a special circumstance enumerated in
paragraph (17) of subdivision (a) has been found to be true
under [s]ection 190.4.”

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be resentenced. (§ 1170.95, subds. (a) & (e); Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677). To be eligible for relief under the statute,
subdivision (a) of the statute sets forth three conditions that must
be met: (1) A charging document was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) The petitioner was convicted of first or second
degree murder following a trial or an accepted plea; and (3) The
petitioner could “not be convicted of first or second degree murder
because of changes to [s]ection[s] 188 or 189” made by Senate Bill
No. 1437. (§ 1170.95, subd. (a).)
Reading section 1170.95 and section 189 together, one who
was previously convicted of murder under a felony murder theory
but was not a major participant in the underlying felony or did
not act with reckless indifference to human life would be eligible
for relief under section 1170.95. Conversely, one who was
previously convicted of murder under a felony murder theory and
was a major participant in the underlying felony and acted with
reckless indifference to human life is not eligible for relief. (See
People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo)
[“petitioner is ineligible for relief as a matter of law [if] he or she
was convicted on a ground that remains valid notwithstanding
Senate Bill [No.] 1437’s amendments to sections 188 and 189”].)
A petition under section 1170.95 must include a declaration
stating that he or she is eligible for relief based on the conditions
described in subdivision (a). (§ 1170.95, subd. (b)(1)(A).) The
petition must also state the superior court case number and
year of conviction, and whether the petitioner requests counsel.
(§ 1170.95, subd. (b)(1)(B) & (C).) If these requirements are
satisfied, the court must then “review the petition and determine

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if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of [the statute].”
(§ 1170.95, subd. (c).) “The court’s role at this stage is simply
to decide whether the petitioner is ineligible for relief as a
matter of law, making all factual inferences in favor of the
petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 329.)
In making this determination, the court may consider
the record of the petitioner’s conviction, including documents
in the court’s own file and the Court of Appeal’s opinion resolving
the defendant’s direct appeal. (Verdugo, supra, 44 Cal.App.5th
at pp. 329–330; People v. Lewis (2020) 43 Cal.App.5th 1128,
1137–1138 (Lewis).) If, based on a review of such documents,
the court determines that the petitioner is ineligible for relief
under the statute as a matter of law, the court may deny the
petition. (Id. at pp. 1138–1139.)
If, however, the court cannot determine that the petitioner
is ineligible as a matter of law, the court shall appoint counsel
for the petitioner, if requested (Lewis, supra, 43 Cal.App.5th
at p. 1140), and “direct the prosecutor to file a response to the
petition” to which the petitioner may reply. (Verdugo, supra,
44 Cal.App.5th at p. 330.) “If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause” (§ 1170.95, subd. (c)) and “hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner.”
(§ 1170.95, subd. (d).)
Here, Morales, who was previously convicted under a
felony murder theory based on an underlying robbery felony,
is not eligible for relief under section 1170.95 if he was a major
participant in the underlying felony and acted with reckless

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indifference to human life. As discussed in our previous opinion
addressing Morales’s direct appeal, the jury that convicted
Morales found these facts beyond a reasonable doubt and this
court upheld the findings on appeal. He is therefore ineligible
for relief under section 1170.95 as a matter of law. (Cf. Lewis,
supra, 43 Cal.App.5th at pp. 1138–1140 & fn. 10.) The trial
court, therefore, did not err in denying Morales’s petition.
DISPOSITION
The order denying Morales’s petition for resentencing
is affirmed.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J.
BENDIX, J.

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