P. v. Enriquez

1
Filed 3/29/21 P. v. Enriquez CA4/2
See Concurring Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ERICK MARTINEZ ENRIQUEZ,
Defendant and Appellant.
E074943
(Super.Ct.No. RIF120947)
OPINION
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and
Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 9 --

2
In 2009, petitioner Erick Martinez Enriquez was convicted of (among other things)
first degree murder, on a felony-murder theory, with a burglary-murder special
circumstance.
In 2019, he filed a petition to be resentenced under the then-recently amended
version of the felony-murder statute. (See § 1170.95.)1 The trial court denied the
petition; it ruled that the special circumstance finding conclusively established that he
was not eligible for relief.
Petitioner contends that this was error. It will take the bulk of this opinion for us
to explain exactly what the issue is and how it arose in this case. Its resolution, however,
is simple. Under a recently published opinion of this court, the trial court’s ruling was
correct. Hence, we will affirm.
I
FACTUAL, PROCEDURAL, AND LEGAL DEVELOPMENTS
A. The State of the Record.
Arguably petitioner has forfeited any review whatsoever by failing to provide us
with an adequate record. (See People v. Roseberry (2020) 57 Cal.App.5th 543, 549.)
The record is lacking many key documents. For example, we do not have the operative
information, most jury instructions, the reporter’s transcript of the trial, or most jury
verdicts. We do not even have the resentencing petition that gives rise to the appeal.
1 This and all further statutory citations are to the Penal Code.

-- 2 of 9 --

3
At the People’s request, we have taken judicial notice of two jury instructions and
one jury finding. The instructions help a little. The jury finding, however, is not the
special circumstance finding that is critical to this case.
In lieu of the absent documents, we rely on facts stated in our opinion in
petitioner’s direct appeal. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136 &
fn. 7, review granted Mar. 18, 2020, S260598, and cases cited.)
B. The Tison Standard.
Under Tison v. Arizona (1987) 481 U.S. 137 (Tison), a person found guilty of
murder on a felony-murder theory cannot constitutionally be sentenced to death unless he
or she either (1) was the actual killer, (2) intended to kill, or (3) was a major participant in
the underlying felony and acted with reckless indifference to human life. (Id. at pp. 150,
158.)
In 1990, Proposition 115 amended section 190.2 so as to expressly incorporate this
requirement of Tison and to make it applicable to life without the possibility of parole.
(See now § 190.2, subds. (b), (c), (d).)
C. The Facts as Shown at Petitioner’s Trial.
We summarize the facts as stated in our opinion in petitioner’s direct appeal.
(People v. Enriquez (Oct. 13, 2010), E049129 [nonpub. opn.].)
Petitioner purchased methamphetamine from Juan “Johnny” Seoane. As of 2004,
they had a simmering dispute over one particular transaction. Defendant claimed Seoane
owed him either money or methamphetamine; Seoane claimed it was defendant who

-- 3 of 9 --

4
owed him. At defendant’s request, one Ramon Cebreros, Jr. went with him to Seoane’s
mobile home to get the money or the drugs. Cebreros brought a gun. Once again,
petitioner and Seoane argued over the methamphetamine transaction. Suddenly,
Cebreros shot Seoane once in the chest, killing him.2
D. Petitioner’s Conviction and Appeal.
Petitioner was charged with murder, with a burglary-murder special circumstance
(§ 190.2, subd. (a)(17)(G)) and an armed principal enhancement (§ 12022, subd. (a)(1)).
In 2009, he was tried before a jury on a felony-murder theory. The jury was
instructed, in accordance with Tison, that it could not find the special circumstance to be
true unless petitioner either (1) was the actual killer, (2) intended to kill, or (3) was a
major participant in the underlying felony and acted with reckless indifference to human
life. (CALCRIM No. 703.)
The jury found petitioner guilty of first degree murder. It also found the special
circumstance and the enhancement to be true. Petitioner was sentenced to life without
the possibility of parole plus one year.
In 2010, this court affirmed the judgment. In that appeal, petitioner did not
challenge the burglary-murder special circumstance.
2 According to the probation report, petitioner suddenly “ducked down and
out of the way” right before Cebreros “pulled out a gun and shot Seoane.” Given the
state of the record, we cannot tell whether evidence of this was presented at trial.

-- 4 of 9 --

5
E. Banks and Clark.
In 2015 and 2016, the California Supreme Court issued two opinions relating to
the meaning of “major participant” and “reckless indifference to human life.”
First, in People v. Banks (2015) 61 Cal.4th 788 (Banks), the evidence showed that
defendant Matthews acted as the getaway driver in a planned armed robbery, which
turned into a murder when another participant shot a security guard. (Id. at p. 795.) Our
Supreme Court held that, under Tison, this was insufficient evidence that he was a major
participant (Banks, supra, at pp. 804-807) as well as insufficient evidence that he acted
with reckless indifference to life. (Id. at pp. 807-811.) It disapproved cases holding that
mere knowledge that one’s accomplice in a robbery is armed is sufficient to establish
reckless indifference to human life. (Id. at p. 809, fn. 8.)
In 2016, in People v. Clark (2016) 63 Cal.4th 522 (Clark), the Supreme Court
found insufficient evidence that the defendant acted with reckless indifference to human
life. (Id. at pp. 614-623.) It specifically listed five factors that are potentially relevant to
this inquiry. First, “[a] defendant’s use of a firearm, even if the defendant does not kill
the victim or the evidence does not establish which armed robber killed the victim, can be
significant to the analysis of reckless indifference to human life.” (Id. at p. 618.)
Second, a defendant’s physical presence at the scene, while not absolutely required, is
relevant, as is the failure to render aid to a victim. (Id. at pp. 619-620.) Third, the
duration of the felony is relevant. (Id. at pp. 620-621.) Fourth, it is relevant whether the
defendant knows that an accomplice has a propensity to violence, especially lethal

-- 5 of 9 --

6
violence. (Id. at p. 621.) Fifth, it is relevant, although not controlling, that the defendant
took steps to minimize the risk to human life. (Id. at pp. 621-622.)
F. Senate Bill No. 1437.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437), effective January 1, 2019. (Stats. 2018, ch. 1015, pp. 6673-6676.) SB 1437,
among other things, amended section 189 so as to provide that the felony-murder rule
(§ 189, subd. (a)) applies to a person only if:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, 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 . . . .
“[(4) T]he victim is a peace officer who was killed while in the course of the
peace officer’s duties, where the defendant knew or reasonably should have known that
the victim was a peace officer engaged in the performance of the peace officer’s duties.”
(§ 189, subds. (e), (f).)
SB 1437 also enacted section 1170.95, which allows a person who has been
convicted of first or second degree murder under a felony-murder theory, but who could
no longer be so convicted under SB 1437, to petition to have the conviction vacated. If
the underlying felony was not charged, the conviction is reduced to the underlying

-- 6 of 9 --

7
felony, and the petitioner is resentenced. (§ 1170.95, subd. (e).) The petitioner also must
be resentenced on any remaining counts. (§ 1170.95, subd. (a).)
G. Petition for Resentencing.
Petitioner filed a petition, in propria persona, for resentencing under section
1170.95. Counsel was appointed for him.
The People moved to dismiss the petition on the ground that the true finding on
the special circumstance categorically barred any relief. The trial court granted the
motion; thus, it denied the petition.
II
THE EFFECT OF THE SPECIAL CIRCUMSTANCE FINDING
Petitioner contends that the trial court erred by ruling that the jury’s true finding
on the special circumstance conclusively established that he was not eligible for
resentencing. He argues that Banks and Clark significantly narrowed the definition of
both “major participant” and “reckless indifference to human life,” so that the jury’s pre-
Banks and Clark true finding does not establish that he comes within that definition.
Recently, however, in People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review
granted January 27, 2021, S265854, this court rejected an identical contention. (Id. at
pp. 482-485.) We held that “Banks and Clark did not change the law,” and therefore “[a]
special circumstance finding renders [a petitioner] ineligible for relief under section
1170.95 as a matter of law.” (Id. at pp. 480-481.)

-- 7 of 9 --

8
We readily acknowledge that there is a split of authority on this point. (Jones,
supra, 56 Cal.App.5th at pp. 482-483.) Unless and until the Supreme Court tells us
otherwise, however, we adhere to our opinion in Jones. Even though review in Jones has
been granted, it remains persuasive (Cal. Rules of Court, rule 8.1115(e)) in this court.3
As we suggested in Jones (Jones, supra, 56 Cal.App.5th at pp. 478-479, and cases
cited), a person in petitioner’s position is not wholly without a remedy. He or she can
challenge prior special circumstance findings in a habeas proceeding. (See, e.g., In re
Scoggins (2020) 9 Cal.5th 667, 676-683.) We express no opinion as to whether, in
petitioner’s case, there might be some procedural bar to such a proceeding at this point.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFICIAL REPORTS
RAMIREZ
P. J.
I concur:
McKINSTER
J.
3 Earlier, in People v. Law (2020) 48 Cal.App.5th 811, review granted July 8,
2020, S262490, we held: “[T]he trial court erred by concluding the special circumstance
finding, on its own, rendered Law ineligible for relief [under section 1170.95] . . . .” (Id.
at p. 825.) We follow Jones, rather than Law, because Jones is more recent. (In re Lane
(1962) 58 Cal.2d 99, 105 [“It is an established rule of law that a later decision overrules
prior decisions which conflict with it, whether such prior decisions are mentioned and
commented upon or not.”].)

-- 8 of 9 --

1
[People v. Enriquez, E074943]
MENETREZ, J., Concurring.
I concur in the judgment for the reasons stated in the majority and concurring
opinions in People v. Jones (2020) 56 Cal.App.5th 474, review granted January 27, 2021,
S265854, with which I continue to agree.
MENETREZ
J.

-- 9 of 9 --