Filed 1/4/21 P. v. Salas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE OF THE STATE 2d Crim. No. B301365
OF CALIFORNIA, (Super. Ct. No. 2008006111)
(Ventura County)
Plaintiff and Respondent,
v.
ALEJANDRO SALAS,
Defendant and Appellant.
Alejandro Salas appeals from a postjudgment order
granting in part and denying in part his motion for resentencing
under Penal Code1 section 1170.95. In 2010, a jury convicted
Salas of second degree murder (§ 187, subd. (a)) and three counts
of attempted murder (§§ 187, 664). The jury also found true gang
and firearm enhancement allegations as to all four counts. (§§
186.22, subd. (b)(1), 12022.53, subds. (d), (e)(1)). Salas was
1 All statutory references are to the Penal Code.
sentenced to an aggregate term of 128 years and 8 months to life
in state prison.
In January 2019, Salas filed a petition for resentencing
under section 1170.95. Following an evidentiary hearing, the
court found Salas was entitled to relief on his conviction of second
degree murder, vacated the true findings on the gang and firearm
use allegations as to that count, and redesignated the conviction
as a conviction for conspiracy to commit a battery (§ 182, subd.
(a)(1)). The court then resentenced Salas to an aggregate term of
75 years to life plus 14 years and four months in state prison.2
Salas contends the court erred in finding he was ineligible
for resentencing as to his convictions for attempted murder. He
also contends the court erred in concluding that Senate Bill 620–
which amended the law to give trial courts the discretion to
strike or dismiss section 12022.53 firearm enhancements in the
interests of justice pursuant to section 1385–did not give the
court the authority to strike the charged enhancements and
instead impose lesser uncharged statutory enhancements.
Finally, he claims the matter must be remanded for resentencing
because the court was unaware of its discretion to impose
concurrent rather than consecutive terms on the firearm
enhancements imposed under section 12022.53, subdivision (d).
We affirm.
2 Appellant was convicted of attempted murder on counts
10, 11, and 12. On count 10, the court sentenced him to the
upper term of 9 years, plus 25 years to life for the firearm
enhancement. On counts 11 and 12, appellant was sentenced to
consecutive terms of two years and four months (one-third the
midterm) plus 25 years to life for the firearm enhancements. On
the redesignated offense of conspiracy to commit a battery, the
court imposed a consecutive eight-month prison term.
2
STATEMENT OF FACTS
The relevant facts are derived from our 2013 unpublished
opinion affirming the convictions of Salas and codefendants Lino
Hernandez and Alvino Joe Hernandez. (People v. Hernandez et
al. (June 24, 2013, B229363) [nonpub. opn.].) In 2006, Salas,
Lino, and Alvino were members of Colonia Chiques (Colonia)
gang in Oxnard. Salas and Alvino lived in an apartment building
at 2011 North Ventura Road in Oxnard (2011 building). Victim
Abraham Lopez and his brothers Moises Lopez and Hector Lopez
lived in an apartment building at 2045 North Ventura Road (the
Lopez apartment).
Abraham and Hector belonged to a tagging group called
DSK, which had about 20 members. Moises associated with
DSK. On May 5, 2006, DSK member Richard Gonzalez went to a
party at the Lopez apartment. During the party, two Colonia
members, including Andy Sanchez (Panda), jumped DSK member
Jose Delgadillo (Ohno) in the alley behind the building.
Sometime later, before September 2006, Colonia and DSK
arranged for Panda and Ohno to fight again. Alvino and Salas
accompanied Panda to the alley behind the Lopez apartment.
Panda and Ohno had just started fighting when two more
Colonia members arrived, armed with aluminum baseball bats.
Abraham, Moises, Hector and his friend Ralph, and a teenager
were there. Abraham or Moises yelled something like, “I thought
this was supposed to be a fistfight. You guys bring weapons.”
Alvino held a knife against the teenager and said, “grab your own
bats.” A Colonia member struck Moises with a bat, which Moises
grabbed and held. The altercation ended after Alvino pushed the
teenager toward Hector.
3
On September 4, 2006, Salas told Gonzalez, Octavio and
Moises that he wanted to arrange a fistfight between a Colonia
member and “Johnny.” Gonzalez, Moises and Octavio went to the
Lopez apartment and drank beer. Moises’s girlfriend, Michele
White, drove to the Lopez apartment at around 6:30 p.m. to
retrieve her game console from Moises. White saw Salas’s
brother-in-law, Alonzo Hernandez, make a crude gesture at
Moises while she was outside with him. Salas, Alvino, and Lino
then approached White and Moises. Moises called his brothers to
warn them that they were there, and asked them to bring a gun.
Moises and White entered the apartment building’s
courtyard from the alley. Salas, Alvino, and Lino followed and
surrounded them. Octavio, Abraham, Moises, and Gonzalez went
downstairs and entered the courtyard. White started to walk
toward Ventura Road but turned back after Lino said, “Where
are you going? It’s all right. Nothing’s going to happen.”
Octavio and Abraham were in the southwest section of the
courtyard facing Lino and Alvino, each of whom had a gun hidden
beneath his sweatshirt. Lino told Octavio, “My carnal [brother]
wants you to keep his name out of your fucking mouth.” He
asked Octavio, “Who is going to get down [fight]?” Octavio
responded that he would fight if no weapons were used. Pointing
at Lino’s sweatshirt, Octavio asked, “What's that you got there?”
Lino pulled out his gun and started firing immediately. Alvino
pulled out a nine millimeter handgun and also started firing.
Octavio was shot several times and fell to the ground. Gonzalez
started running away and was shot seven times. Gonzalez then
aimed his firearm toward Lino, fired several times, and tossed it
in the bushes. White was shot in the leg.
4
After Lino and Alvino started shooting, several bullets hit
Abraham. He fell, loaded his gun, and returned fire. Alvino
pistol-whipped Abraham, shot him in the face, took his gun, and
ran away with Lino.
Police at the crime scene recovered 21 expended casings
from a semi-automatic TEC-9 weapon, an expended casing from a
nine millimeter Makarov handgun, two expended casings and one
misfired bullet from a .380 caliber handgun, and six expended
casings from a .357 revolver. Several days later, a Makarov
handgun, a TEC-9 weapon and magazine, and a nine-millimeter
magazine with live rounds were recovered from Alvino’s vehicle.
Analyses connected those weapons to evidence from the Lopez
courtyard and the shooting victims.
Octavio died from his gunshot wounds. Abraham lost an
eye and suffered other wounds in his chest, shoulder, forearm,
face, legs, and buttocks. Gonzalez suffered permanent, disabling
nerve damage, lost the ability to move his left foot, and needed a
leg brace. White suffered a gunshot wound that pierced an artery
and left numbness in her left leg.
Police officers interviewed Lino on September 26, 2006, and
Salas on October 4, 2006. Both men denied that they were in
Oxnard at the time of the shootings and claimed they no longer
associated with Colonia. When Salas was interviewed again in
January 2008, he again denied that he was in Oxnard when the
shootings occurred and claimed he did not associate with Colonia.
The mother of Salas’s girlfriend initially told officers that Salas
was with her family in Bellflower that day, but later admitted
this was false and that she had been pressured to provide Salas
with an alibi.
5
Alvino testified on his own behalf. On the day of the
shootings, Salas called Alvino, said there was going to be a fight
between a Colonia member and a DSK member, and asked Alvino
to provide “back up.” About 90 minutes later, Alvino, Lino, and a
fellow Colonia associate named Abel rode with a man named
“Loc” to a home near Salas’s apartment. Alvino was carrying the
TEC-9 and the Makarov. They met with Salas and Panda for
about 20 minutes in an alley. Alvino gave Lino the TEC-9.
Lino and Alvino started walking toward the Lopez
apartment, followed by Salas and Abel. Alvino and Lino
encountered Moises and White in the alley. Alvino then saw
Abraham and Octavio in the courtyard and Gonzalez came
downstairs. Alvino had been “picking” at his waistband and
Octavio asked what was in his waistband. Alvino “got scared”
when he saw Gonzalez reaching toward his hip. Before Gonzalez
or anyone with DSK displayed a firearm, Alvino pulled out his
gun, started shooting, and struck Gonzalez once. Alvino’s gun
then jammed and Lino started shooting. Abraham and Gonzales
fired their guns. Alvino saw Abraham lying on the ground,
aiming a gun at Lino. Alvino ran to Abraham, pistol-whipped
him, and took his .380.
DISCUSSION
§ 1170.95 - Attempted Murder
Salas contends the trial court erred in finding that section
1170.95 does not apply to his convictions of attempted murder
and that denying him relief for those convictions violates his
equal protection rights. We disagree.
In 2018, the Legislature enacted Senate Bill No. 1437,
which eliminated liability for murder under the natural and
probable consequences doctrine. (People v. Lopez (2019) 38
6
Cal.App.5th 1087, 1092-1093 (Lopez), review granted Nov. 13,
2019, S258175.) The natural and probable consequences doctrine
provides that “‘[a] person who knowingly aids and abets criminal
conduct is guilty of not only the intended crime [target offense]
but also of any other crime the perpetrator actually commits
[nontarget offense] that is a natural and probable consequence of
the intended crime.’” (People v. Medina (2009) 46 Cal.4th 913,
920.) “‘By its very nature, aider and abettor culpability under the
natural and probable consequences doctrine is not premised upon
the intention of the aider and abettor to commit the nontarget
offense because the nontarget offense was not intended at all. It
imposes vicarious liability for any offense committed by the direct
perpetrator that is a natural and probable consequence of the
target offense.’” (People v. Chiu (2014) 59 Cal.4th 155, 164,
superseded by statute in Lopez, supra, 38 Cal.App.5th at
p. 1103.)
Senate Bill No. 1437 was enacted “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.” (Stats. 2018, ch. 1015, § 1(f), p. 6674, italics added; see
People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Section 188
was amended to require that “in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch.
1015, § 2, p. 6675; In re R.G. (2019) 35 Cal.App.5th 141, 144.) As
a result of this amendment, the natural and probable
7
consequences doctrine can no longer be used to support a murder
conviction. (Lopez, supra, 38 Cal.App.5th at pp. 1103 & fn. 9.)
The legislation also enacted section 1170.95 to allow
individuals previously convicted of murder under a natural and
probable consequences theory to petition the court to have their
murder convictions vacated and to be resentenced. A petitioner
is eligible for resentencing if three conditions apply: (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 degree or second degree
murder following a trial or accepted a plea . . . ; [and] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189” made by Senate Bill
No. 1437. (§ 1170.95, subd. (a).)
The plain text of section 1170.95 makes clear that Salas is
ineligible for relief on his convictions of attempted murder under
the plain text of section 1170.95. Although they are closely
related, “[m]urder and attempted murder are separate crimes.”
(Lopez, supra, 38 Cal.App.5th at p. 1109.) Moreover, the
remainder of the text of Senate Bill No. 1437 confirms that the
Legislature intended the law to apply exclusively to defendants
convicted of murder. The law expressly states that “[t]here is a
need for statutory changes to more equitably sentence offenders
in accordance with their involvement in homicides.” (Stats. 2018,
ch. 1015, § 1(b), p. 6674, italics added.) The Legislature acted “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.” (Stats. 2018, ch. 1015, § 1(f),
8
p. 6674, italics added.) This is not an instance where “‘resolution
of the statute’s ambiguities in a convincing manner is
impracticable,’” such that we must apply the rule of lenity to
interpret the law in the defendant’s favor. (People v. Avery (2002)
27 Cal.4th 49, 58.)
Every court to address the issue has concluded that
individuals convicted of attempted murder are ineligible for relief
under section 1170.95. (See, e.g., People v. Dennis (2020) 47
Cal.App.5th 838, 844-847, review granted July 29, 2020,
S262184; Lopez, supra, 38 Cal.App.5th at pp. 1104-1105; People
v. Munoz (2019) 39 Cal.App.5th 738, 753, review granted
November 26, 2019, S258234; People v. Medrano (2019) 42
Cal.App.5th 1001, 1016-1018, review granted Mar. 11, 2020,
S259948; People v. Larios (2019) 42 Cal.App.5th 956, 968-969,
review granted Feb. 26, 2020, S259983.) We reach the same
conclusion, pending our Supreme Court’s resolution of the issue.
Salas complains that this conclusion creates an irrational
result in which defendants convicted of murder are punished less
severely than those convicted of attempted murder. He relies on
People v. King (1993) 5 Cal.4th 59, in which the court held that
laws providing a benefit to juvenile defendants convicted of
murder must be interpreted as providing the same benefit to
attempted murderers, even though the literal text of the statute
indicates otherwise. In so holding, the court recognized that
“‘“language of a statute should not be given a literal meaning if
doing so would result in absurd consequences which the
Legislature did not intend.”’” (Id. at p. 69.) As noted in Lopez,
however, the sentencing provisions in King occurred because a
series of unrelated statutes and Supreme Court decisions worked
together in a way the Legislature had not considered or
9
anticipated. (See Lopez, supra, 38 Cal.App.5th at pp. 1106-1107.)
“Here, in contrast, we are not dealing with amendments of
different statutes in separate codes at different times leading to
an unintended result, but a single piece of legislation in which
the Legislature unequivocally elected, both in the words it chose
and its statement of purpose, to provide a benefit to one category
of aiders and abettors prosecuted under the natural and probable
consequences doctrine—those facing the lengthiest prison
sentences—and not to others.” (Id. at p. 1107.)
Salas also misplaces his reliance on People v. Barrajas
(1998) 62 Cal.App.4th 926. In that case, the court held that
section 1000—which allows defendants convicted of certain drug
offenses to enter a diversion program—also applies to those
convicted of attempting to commit a predicate offense, even
though the statute made no provision for attempts. (Barrajas, at
p. 929 & fn. 3.) But section 1000 applies to several different
criminal offenses, most of which involve the simple possession or
use of illegal drugs. (See § 1000, subd. (a).) Section 1170.95, by
contrast, involves only the offense of murder. When the
Legislature intends for a law to apply to attempted murder, it
explicitly says so in the text of a statute. (See, e.g., § 246.1, subd.
(a) [law requiring forfeiture of a vehicle used in a crime applies to
attempted murder], § 667.5, subd. (c)(12) [defining attempted
murder as a violent felony], § 2932, subd. (a)(1) [loss of credit for
good behavior for committing attempted murder in prison].)
Moreover, it is not irrational to provide relief for
defendants convicted of murder but not attempted murder. As
the court explained in Lopez, “the gap between a defendant’s
culpability in aiding and abetting the target offense and the
culpability ordinarily required to convict on the nontarget offense
10
is greater in cases where the nontarget offense is murder, than
where the nontarget offense is attempted murder or, in the
prosecutor’s discretion, aggravated assault. The Legislature
could have reasonably concluded reform in murder cases ‘was
more crucial or imperative.’” (Lopez, supra, 38 Cal.App.5th at
p. 1112.) Given the limited resources available for handling
resentencing cases, the Legislature may have decided to make
relief available only to murder cases. (See ibid.)
To the extent Salas asserts that the exclusion of attempted
murder from section 1170.95 violates principles of equal
protection, it is well-settled that “[p]ersons convicted of different
crimes are not similarly situated for equal protection purposes.”
(People v. Barrera (1993) 14 Cal.App.4th 1555, 1565, citations,
italics and internal quotation marks omitted.) As the court in
Lopez recognized, “murder is punished more severely than
attempted murder” and “[t]he Legislature is permitted to treat
these two groups of criminal differently.” (Lopez, supra, 38
Cal.App.5th at p. 1110; see also People v. Munoz, supra, 39
Cal.App. 5th at pp. 760-761.)
Firearm Enhancements (§ 12022.53, subd. (d))
Salas contends the matter must be remanded for a new
resentencing hearing because the court misunderstood the scope
of its discretion to strike the section 12022.53, subdivision (d)
firearm enhancements and impose lesser included uncharged
enhancements, as provided in People v. Morrison (2019) 34
Cal.App.5th 217 (Morrison). We disagree.
“‘“‘When we interpret a statute, “[o]ur fundamental task . . .
is to determine the Legislature’s intent so as to effectuate the
law’s purpose. We first examine the statutory language, giving it
a plain and commonsense meaning. We do not examine that
11
language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and purpose
and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning
unless a literal interpretation would result in absurd
consequences the Legislature did not intend.”’”’ [Citation.] In
construing any statute, ‘we may not broaden or narrow the scope
of the provision by reading into it language that does not appear
in it or reading out of it language that does. “Our office . . . ‘is
simply to ascertain and declare’ what is in the relevant statutes,
‘not to insert what has been omitted, or to omit what has been
inserted.’” [Citation.] “‘“[A] court . . . may not rewrite the statute
to conform to an assumed intention which does not appear from
its language.”’”’ [Citation.]” (People v. Yanez (2020) 44
Cal.App.5th 452, 458-459 (Yanez), review granted April 22, 2020,
S260819.)
When appellant was originally sentenced, trial courts had
no authority to strike or dismiss firearm enhancements imposed
under section 12022.53. Senate Bill 620, which went into effect
in January 2019, amended section 12022.53 to provide that “[t]he
court may, in the interest of justice pursuant to Section 1385 and
at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority
provided by this subdivision applies to any resentencing that may
occur pursuant to any other law.” (§ 12022.53, subd. (h).)
In Morrison, supra, 34 Cal.App.5th 217, the court held that
in light of this amendment the trial court had the authority to
strike a firearm enhancement charged and found true under
section 12022.53, subdivision (d)—the punishment for which is 25
years to life—and instead impose an uncharged 10-year
12
enhancement under section 12022.53, subdivision (b), or an
uncharged 20-year enhancement under subdivision (c).
(Morrison, at pp. 222-223.) The court in People v. Tirado (2019)
38 Cal.App.5th 637 (Tirado), review granted November 13, 2019,
S257658, disagreed with Morrison, noting that “[n]othing in the
plain language of sections 1385 or 12022.53, subdivision (h)
authorizes a trial court to substitute one enhancement for
another.” (Tirado, at p. 643.)
In Yanez, supra, 44 Cal.App.5th 452, the court agreed with
Tirado and observed that “under a plain reading, the
Legislature’s use of the words ‘strike’ or ‘dismiss’ indicates the
court’s power pursuant to these sections is binary. [Citation.]”
(Yanez, at p. 459.) The court in Yanez also “decline[d] to adopt an
interpretation of section 12022.53, subdivision (h) which would
vest the trial court with discretionary power to essentially modify
a charge brought by the prosecutor despite sufficient evidence to
support such a charge.” (Yanez, at p. 460.) In People v. Garcia
(2020) 46 Cal.App.5th 786 (Garcia), review granted June 10,
2020, S261772, the court also agreed with Tirado “that section
12022.53, subdivision (h) does not grant a trial court the
discretion to substitute lesser included [firearm] enhancements,
at least where the greater enhancement is legally and factually
valid.” (Garcia, at pp. 790-791.) The court reasoned that the
plain language of the statute was unambiguous, granting courts
discretion solely to strike or dismiss a firearm enhancement. (Id.
at p. 791.) The court further reasoned that the separation of
powers vested the executive with the exclusive power to choose
which enhancements to charge. (Id. at pp. 791-792.)
We agree with the reasoning and holdings in Tirado,
Yanez, and Garcia. Pending further guidance from our Supreme
13
Court in its review of those decisions, we decline to follow
Morrison and conclude that the trial court properly understood
the scope of its discretion in imposing the 25-years-to-life
enhancements under section 12022.53, subdivision (d).
We also reject Salas’s claim that the matter must be
remanded for resentencing as to the firearm enhancements
imposed under subdivision (d) of section 12022.53 because the
record does not reflect the court’s understanding that it had the
authority to order that those enhancements run concurrently
rather than consecutively to each other. As the People correctly
note, the court had no such authority because it imposed
consecutive terms on the underlying substantive offenses.
(People v. Oates (2004) 32 Cal.4th 1048, 1066; People v. Mustafaa
(1994) 22 Cal.App.4th 1305, 1311.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
14
Derek D. Malan, Judge
Superior Court County of Ventura
______________________________
Jonathan E. Demson, 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, Senior
Assistant Attorney General, Charles S. Lee, and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.