Filed 9/8/22 P. v. Lispier CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060356
v. (Super. Ct. No. 95CF2588)
RAFAEL LISPIER, OPI NION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Elizabeth G. Macias, Judge. Affirmed.
Robert Booher, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorneys General, Alan L. Amann and A.
Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.
* * *
Defendant Rafael Lispier appeals from an order denying his petition for
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resentencing under Penal Code former section 1170.95 (now Pen. Code, § 1172.6). The
trial court found defendant failed to establish a prima facie case for relief because he was
convicted of conspiracy to commit murder.
On appeal, defendant argues his conspiracy to commit murder conviction is
an eligible offense for resentencing relief. He also claims it is possible the jury found
him guilty of conspiracy to commit murder without finding he had an intent to kill.
We disagree. Conspiracy to commit murder is not an eligible offense for
resentencing relief. In any event, the jury necessarily found defendant had an intent to
kill. We accordingly affirm the trial court’s order.
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FACTS
“During 1994 and 1995, four members of the Central Myrtle gang were
killed in the Santa Ana area. In August 1995, Lispier, a member of the gang, went to the
wake of one of the gang fatalities, Lucio Hernandez. Hernandez had been shot while
standing in front of Lispier’s home, a victim of a drive-by shooting allegedly perpetrated
by a rival gang, the Public Vandals (PV).
“Lispier left the wake with Alex Urrutia, whose brother was a member of
[3]
the affiliate gang of Central Myrtle. The two gang brothers left in a white van with
1
Effective June 30, 2022, Penal Code section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). All further statutory
references are to the Penal Code.
2
We provide a summary of the relevant facts from this court’s prior opinion.
(People v. Lispier (May 26, 1999, G020805) [nonpub. opn.] (Lispier I).) Additional
factual details may be found in the prior opinion.
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The van belonged to Gloria Canales. It was stolen from the front of her
house in Santa Ana on the evening Lispier attended the wake. She recovered her van two
days later and found shell casings in its interior.
2
Urrutia expressing his desire to retaliate against PV with a “payback” act, such as a drive-
by shooting. Lispier later claimed that he told Urrutia that he did not do “that kind of
thing,” but made no effort to get out of the van or stop Urrutia.
“Urrutia had three firearms with him: two pistols and an assault rifle. He
handed Lispier a .380 pistol with instructions to shoot out the back window as they drove
away. Lispier accepted the gun and followed the instructions by raising it and pointing it
out of the window. At the time, he was on probation to the juvenile court with a
condition barring him from owning or possessing firearms.
“Urrutia and Lispier then drove by the home of a known PV member, Cesar
Jauregui, who lived on Shelton Street. Jauregui happened to be standing outside with a
neighbor as well as another friend who was a former PV member. Driving past the
house, Urrutia and Lispier stared at the men in the yard, a customary form of taunting
rival gang members. Realizing the danger they were in, Jauregui and his neighbor took
cover, leaving the former PV member alone in the front yard.
“Urrutia and Lispier drove back around to Jauregui’s house; this time
Urrutia pulled out a gun and began shooting. According to Lispier, Urrutia first fired the
assault rifle through the front passenger window two or three times. He then threw the
rifle into the back seat for Lispier to use, and continued firing with a .38 caliber revolver.
The jury found that Lispier did not actually fire any shots although he held up the .380
gun and aimed it at the men. After the shooting, Juaregui’s neighbor ran to his car and
followed the van until it stopped in front of Lispier’s house.”
In 1996, a jury convicted defendant of one count of receiving stolen
property (§ 496, subd. (a); count 2); two counts of street terrorism (§ 186.22, subd. (a);
counts 4 and 8); one count of conspiracy to commit murder (§ 182; count 5); and one
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count of being a probationer in possession of a firearm (§ 12021, subd. (d); count 9).
4
To avoid any confusion, we refer to the counts as they were alleged and
numbered in the amended information.
3
The jury also found gang enhancements to be true on counts 2, 5, and 9 (§ 186.22, subd.
(b)) along with a firearm enhancement on count 5 (§ 12022, subd. (a)(1)). Among other
charges, the jury found defendant was not guilty of attempted murder (§§ 187, subd. (a),
664; count 6).
The court sentenced defendant to an indeterminate sentence of 28 years to
life in state prison as follows: (1) 25 years to life on count 5, plus one year for the
firearm enhancement and two years for the gang enhancement; (2) a concurrent term of 2
years on count 2, plus 2 years for the gang enhancement; and (3) a concurrent term of 2
years on count 9, plus 2 years for the gang enhancement. The court also stayed sentences
on counts 4 and 8 pursuant to section 654.
Another panel of this court affirmed a modified judgment in 1999. (Lispier
I, supra, G020805.) This court reduced defendant’s sentence from 28 years to 26 years to
life, but found the evidence was sufficient to support defendant’s conspiracy conviction
and that the conspiracy instructions were proper. (Ibid.)
In 2019, defendant filed a petition seeking resentencing pursuant to section
1172.6. After a hearing where defendant was represented by counsel, the court denied
the petition. The court found defendant was not eligible for resentencing because he was
convicted of conspiracy to commit murder. Defendant timely filed a notice of appeal.
DISCUSSION
Defendant contends the court improperly denied his petition for
resentencing on the conspiracy to commit murder conviction without conducting an
evidentiary hearing. He acknowledges a conviction for conspiracy to commit murder
includes a finding of intent to kill, but he claims there are “numerous aspects of [his]
conviction and original appeal that support the possibility . . . the jury did not truly find
[he] had the intent to kill, but instead convicted him based on his having participated in a
drive by shooting by being in the car with, and in the same gang as, the shooter.”
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Defendant accordingly argues the denial of his petition deprived him of his right to due
process. For the following reasons, we disagree with defendant’s contentions and affirm.
Applicable Law
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437) 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, subd. (f).) It accomplished this
by amending sections 188 and 189 and adding section 1172.6, such that persons
convicted of felony murder or murder under a natural and probable consequences theory
could seek resentencing or to have the conviction vacated. (People v. Lewis (2021) 11
Cal.5th 952, 957, 959.) Senate Bill 1437 also created a procedure, codified in section
1172.6, by which defendants could seek resentencing if their conduct did not constitute
murder as redefined by Senate Bill 1437. (Lewis, at p. 957.) If the petitioner makes a
prima facie showing, the trial court is required to issue an order to show cause.
(§ 1172.6, subd. (c).) If the parties do not stipulate petitioner is entitled to relief, the
court must conduct an evidentiary hearing. (Id., subd. (d).)
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2; Senate Bill 775) amended section 1172.6 to expand
resentencing eligibility to persons convicted of attempted murder and manslaughter.
Because the trial court’s denial of defendant’s petition turned on an application of section
1172.6 to the undisputed facts, our review is de novo. (People v. Pacheco (2022) 76
Cal.App.5th 118, 123.)
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The Court Did Not Err by Denying Defendant’s Petition for Resentencing
Here, the People correctly argue conspiracy to commit murder is not an
eligible offense for resentencing relief. Section 1172.6, subdivision (a) provides: “A
person convicted of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder, attempted murder, or
manslaughter conviction vacated . . . .” (Italics added.) By its plain terms, section
1172.6 does not include conspiracy to commit murder as a crime that is eligible for relief.
Instead, the statute only applies to convictions for murder, attempted murder, or
manslaughter.
In People v. Whitson (2022) 79 Cal.App.5th 22 (Whitson), the Second
District Court of Appeal held former section 1170.95 “does not permit a challenge to a
conviction for conspiracy to murder.” (Whitson, at p. 35.) The court noted the statute
does not mention conspiracy to murder and emphasized the Legislature had an
opportunity to extend relief to these convictions when it promulgated Senate Bill No.
775. (Whitson, at pp. 34-35.) But Senate Bill No. 775 amended the statute to include
convictions for attempted murder and manslaughter in the list of crimes subject to
petition while omitting conspiracy to murder. (Whitson, at p. 34.) Relying on the
legislative history of Senate Bill Nos. 1437 and 775, the court found there was no
“legislative intent to lessen the penalty for conspiracy to murder under any
circumstance.” (Whitson, at p. 35.) The court reasoned this was “presumably because
the crime as defined in the Penal Code is based on the conspirator defendant’s own
subjective mens rea: conspiracy to murder requires that a defendant either act with malice
or intend to kill.” (Ibid.) In other words, “[a] jury’s finding that a defendant is guilty of
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conspiracy to murder, when a murder has in fact been committed, is ‘in effect [a finding]
that [the defendant] was a direct aider and abettor of the killings.’” (Id. at p. 36.)
Defendant argues his conspiracy to murder conviction falls within section
1172.6 because the statute applies to any “other theory under which malice is imputed to
a person based solely on that person’s participation in a crime.” (Id., subd. (a).) As the
Whitson court held, “A theory imputing malice is relevant only to vacating a conviction
for one of the statute’s specified crimes, which do not include convictions for
conspiracy.” (Whitson, supra, 79 Cal.App.5th at p. 36.)
Apart from the unambiguous language of section 1172.6, defendant also is
precluded from resentencing relief because the jury necessarily found he had an intent to
kill. On the conspiracy count, the court provided CALJIC No. 6.10, which instructed the
jury that defendant had to have an intent to kill to be guilty of conspiracy to commit
murder. The instructions provided in relevant part: “A conspiracy is an agreement
entered into between two or more persons with the specific intent to agree to commit the
public offense of murder and with the further specific intent to commit such
offense . . . followed by an overt act committed in this state by one [or more] of the
parties for the purpose of accomplishing the object of the agreement.” (Italics added.)
The instructions further stated: “In order to find a defendant guilty of conspiracy, in
addition to proof of the unlawful agreement and specific intent, there must be proof of the
commission of at least one of the overt acts alleged in the information.” Thus, the jury’s
guilty verdict on the conspiracy count necessarily required the jury to find defendant
harbored a specific intent to unlawfully kill.
Relying on CALJIC Nos. 3.02 and 6.11, defendant claims he could have
been convicted of conspiracy to commit murder under a natural and probable
consequences theory. The trial court provided the following CALJIC No. 3.02
instruction: “One who aids and abets [another] in the commission of a crime [or crimes]
is not only guilty of [that crime] [those crimes], but is also guilty of any other crime
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committed by a principal which is a natural and probable consequence of the crime[s]
originally aided and abetted.”
CALJIC No. 6.11 also instructed the jury on joint responsibility for
criminal conspiracy. The instructions stated: “A member of a conspiracy is not only
guilty of the particular crime that to his knowledge his confederates agreed to and did
commit, but is also liable for the natural and probable consequences of any [crime] [act]
of a co-conspirator to further the object of the conspiracy, even though such [crime] [act]
was not intended as a part of the agreed upon objective and even though he was not
present at the time of the commission of such [crime] [act]. [¶] You must determine
whether the defendant is guilty as a member of a conspiracy to commit the originally
agreed upon crime or crimes, and, if so, whether the crime alleged [in Count 5] was
perpetrated by [a] coconspirator[s] in furtherance of such conspiracy and was a natural
and probable consequence of the agreed upon criminal objective of such conspiracy.”
Given these instructions, defendant claims “if the jury had been led to
believe that the object of the conspiracy was to commit a drive-by shooting . . . [citation]
the jury could have thought that because the shooter had the intent to kill, [defendant]
was vicariously liable for such intent, as it was a natural and probable consequence of his
participation in a drive-by shooting.” Not true. As the People note, the natural and
probable instructions address liability for nontarget offenses, not the target offense. Here,
the target offense was murder and required a finding that defendant harbored the intent to
kill. And the jury necessarily determined defendant harbored the intent to kill by finding
he was guilty of conspiracy to commit murder. (People v. Medrano (2021) 68
Cal.App.5th 177, 184 [finding the petitioner “was not convicted of conspiracy to commit
first degree murder under the natural and probable consequences theory as set forth in
CALJIC No. 6.11” because murder “was the object of the conspiracy, not the natural and
probable consequence of an act committed to further the object of the conspiracy”].)
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Defendant next suggests the jury may not have found he had the intent to
kill because the jury acquitted him of attempted murder. But the two crimes are different.
With a conspiracy, “[t]he conspiratorial agreement is itself the essence of the crime, and
is what it seeks to punish.” (People v. Cortez (2018) 24 Cal.App.5th 807, 818.) “‘[O]nce
one of the conspirators has performed an overt act in furtherance of the agreement, “the
association becomes an active force[;] it is the agreement, not the overt act, which is
punishable. Hence the overt act need not amount to a criminal attempt and it need not be
criminal in itself.”’” (Ibid., italics added.) By contrast, “[a]ttempted murder requires the
specific intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Superior Court (Decker) (2007) 41
Cal.4th 1, 7, italics added.) Thus, conspiracy “‘“reaches further back into preparatory
conduct than attempt . . . .”’” (People v. Morante (1999) 20 Cal.4th 403, 417.) As such,
defendant may have conspired to murder without attempting to murder.
Finally, defendant argues this court’s prior opinion suggests the object of
the conspiracy was to commit a drive-by shooting rather than murder. (Lispier I, supra,
G020805.) He relies on the following language in the opinion: “Such facts constitute
circumstantial evidence of an agreement between two men to commit the drive-by
shooting. Thus, the requisite elements of a conspiracy—an agreement between two or
more persons with the specific intent to commit the drive-by shooting, followed by at
least one overt act for the purpose of accomplishing the crime [citation] were met.”
(Ibid.) When viewed in context, this language does not change our conclusion. The
court made this statement when analyzing whether there was sufficient evidence to
support the conspiracy to commit murder conviction. (Ibid.) The court later emphasized
the “prosecution consistently argued that [defendant] had the requisite intent to kill” and
“never suggested the jury base its verdict on a finding of implied malice.” (Ibid.) The
court concluded it was “beyond a reasonable doubt that the jury did not convict
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[defendant] of conspiracy to commit murder based on [an] implied malice instruction.”
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(Ibid.) In short, our prior opinion does not support defendant’s arguments.
DISPOSITION
The postjudgment order denying defendant’s section 1172.6 petition is
affirmed.
SANCHEZ, J.
WE CONCUR:
MOORE, ACTING P. J.
GOETHALS, J.
5
Defendant also raises an ineffective assistance of counsel claim to the
extent he forfeited any of his arguments. Because the People concede there was no
forfeiture and we also conclude defendant did not forfeit his arguments, we need not
address the ineffective assistance of counsel claim.
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