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SB 1437: Felony Murder Special Circumstance Fatal
When our office reviews a recently published criminal law decision from a state appellate court, the California Supreme Court, the U.S. Ninth Circuit Court of Appeal or the U.S. Supreme Court, we are always curious about where the case first arose and if we knew the judge who handled the case first.
The following case is one such case, as it arose in Torrance Superior Court before Judge Hector Guzman, who we respect as a patient, careful judge who strictly applies the law. He is also personable and humble. He took over the department once handled by Judge Steve Van Slicken, so Judge Guzman handles some of the tougher cases.
The following Second Appellate District ruling affirming Judge Guzman personifies such a tough case with a strict application of the law, wherein Judge Guzman ruled that when a defendant is convicted of murder with a felony-murder special circumstance finding, that defendant is ineligible as a matter of law for relief under Penal Code § 1170.95 (Senate Bill 1437). No published decision has gone quite this far before, to so rule as a matter of law.
The Gist of this Article: The Second Appellate District affirmed a trial court judge’s summary denial of a SB 1437 motion because the jury found the murder was committed under special circumstances under CALCRIM 703. It should be noted that petitioner here should have instead challenged the special circumstance finding through a petition for writ of habeas corpus with discussion of the Banks and Clark standards.
On January 31, 2007, between 5:00 a.m. and 6:00 a.m., a witness in Rancho Palos Verdes heard two gunshots coming from an area of a nearby archery range and turnout area, so that witness called the police, which would be the Lomita Sheriff’s Department.
Around 7:15 a.m., the same day, another witness reported that he had seen a dead body on the side of the road in the same location. The Lomita Sheriffs arrived to find the body of Jesus Payan lying facedown in the dirt. His wrists were bound behind his back with clear packing tape and his ankles were bound by silver duct tape. There were two gunshot wounds to his head. Both shots entered his head from the back and exited the front. The evidence suggested he was killed “execution style,” with the shots fired in rapid succession.
Other fresh abrasions on Payan’s body appeared to have been sustained in the 12 to 24 hours before he was killed.
Through a series of coincidences and a thorough police investigation, Daniel Isidrio Nunez was arrested, charged and convicted in 2009 of the 2007 murder and kidnapping of Jesus Payan.
Torrance CourthouseThe Torrance jury also found true that the murder was committed while appellant was engaged in a kidnapping (Penal Code § 190.2(a)(17)) and the special allegation that a principal was armed with a firearm (Penal Code § 12022(a)(1)). It does not appear that the jury found Nunez was the actual killer; rather, it appears the jury found Nunez was certainly involved in the killing, at least as an aider and abettor.
Nunez was sentenced to life without the possibility of parole for the murder conviction and 22 years for the kidnapping conviction. We believe that the sentencing judge at the time was Steven Van Slicken, not Judge Guzman.
On September 30, 2018, Governor Brown signed Senate Bill 1437 into law in order “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.”
On February 15, 2019, Mr. Nunez filed a petition for resentencing under Senate Bill 1437, through Penal Code § 1170.95. Judge Guzman summarily denied it without appointing counsel for Nunez.
Nunez had submitted a declaration in support of his petition, in which he checked boxes stating that: 1) he was prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; 2) that he was convicted of first or second degree murder following trial; and 3) he could not now be convicted of murder under recent amendments to Penal Code sections 188 and 189.
Judge Guzman noted, in response, that while the jury was instructed on the natural and probable consequences theory of murder, the prosecutor never relied on that theory of murder. Instead the jury was instructed on special circumstances felony murder (in the commission of kidnapping) and found the allegation to be true.
Judge Guzman also found it critical that “pursuant to CALCRIM 703, the jury was instructed that in order to find this special circumstance true, for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, they must find, beyond a reasonable doubt, that the defendant either intended to kill, or that ‘the defendant acted with reckless indifference to human life and was a major participant in the crime.’ (CALCRIM 703)” Because the jury had found the felony-murder special circumstance allegation true, Judge Guzman summarily denied the petition on the ground that Nunez was not entitled to relief under section 1170.95 as a matter of law.
Nunez then appealed to the Second Appellate District, which agreed with Judge Guzman’s reasoning that a person so convicted of a special circumstance felony murder cannot, as a matter of law, make a prima facie showing of being entitled to relief (People v. Daniel Isidro Nunez (2020 DJDAR 11987)).
A reader who is familiar with the California Supreme Court decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 may find the Second Appellate District Court’s ruling somewhat surprising, but the Second Appellate District did not rule that, on the merits, the felony-murder special circumstance finding against Nunez was valid.
Instead, the Second District addressed the issue by holding that an attack or appeal of the jury’s prior factual findings that defendant was a major participant who acted with reckless disregard for human life must be made via a petition for writ of habeas corpus, not through a petition for resentencing under 1170.95 (SB 1437).
We present this summary for the reader who suffered or knows someone who suffered a felony murder conviction with a special circumstance finding by the jury, who was not the actual killer, because a petition for resentencing under SB 1437 will be regarded with skepticism at least, if not denied summarily based on this recent published opinion.
The citation for the Second Appellate District Court ruling discussed above is People v. Daniel Isidrio Nunez (2nd App. Dist., 2021) 57 Cal. App. 5th 78, 271 Cal. Rptr. 3d 191.
For more information about SB 1437, please click on the following articles:
