Filed 2/6/23 P. v. Suarez CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E079619
v. (Super. Ct. No. RIF153089)
ARTURO SUAREZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. William S. Lebov, Judge.
Affirmed.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant Arturo Suarez Jr. appeals from a postjudgment order
1 2
denying his Penal Code section 1172.6 (formerly section 1170.95) petition for
resentencing under the procedures established by Senate Bill Nos. 775 and 1437.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738, requesting this court to conduct
an independent review of the record. In addition, defendant has had an opportunity to file
a supplemental brief with this court and has done so. Based on our independent review
of the record for potential error and considering defendant’s personal supplemental brief
in support of his appeal, we affirm the trial court’s denial of the petition for relief under
section 1172.6.
II.
3
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, who was a gang member, lost a fist fight to a senior gang member. As
both parted ways and went to their respective vehicles, d efendant grabbed a gun from his
1
All future statutory references are to the Penal Code.
2
Effective June 30, 2022, the Legislature renumbered section 1170.95 as section
1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section
1172.6 for ease of reference unless otherwise indicated.
3
A summary of the factual background is taken from this court’s nonpublished
opinion in defendant’s direct appeal, case No. E057525 (People v. Suarez (Apr. 10, 2014,
No. E057525) [nonpub. opn.] (Suarez I).)
2
vehicle and shot at the senior gang member while he was in his car. Specifically,
defendant went across the street to his car, reached through the driver’s window for his
pistol, walked over to the victim’s car, and fired at the passenger’s side door of the
victim’s car more than six times. Defendant was about six feet away. (Suarez I, supra,
E057525.)
Defendant shot the victim 10 times in the chest, shoulders, arms and finger. After
four surgeries, including putting steel plates in his arms, the victim was released from the
hospital five days after the shooting. The victim’s rear, passenger-side car window was
shattered and the car trunk, passenger-side bumper and inside door panel on the driver’s
side were damaged from bullet strikes. Two .40-caliber bullets and eight shell casings
were recovered. Three of the casings were found in the car. No weapons were found
inside or near the victim’s car. (Suarez I, supra, E057525.)
After the shooting, defendant ran to his car and left the scene. He disposed of his
gun and, fearing incarceration, fled to Las Vegas. Three months after the shooting,
defendant was located and arrested. Defendant admitted to grabbing his gun from his
vehicle and shooting at the victim, but claimed to do so in self-defense. Specifically, he
testified he saw the victim reach under his car seat and pull something out. Defendant
thought the victim was going to kill him, so he ran to his car. Glancing back, defendant
saw the victim holding a gun and thought the victim was going to shoot him. Defendant
grabbed his gun from his car and started firing at the victim’s car because the victim had
a gun pointed at him. Defendant feared for his life and that of his wife and one-month-
3
old son. As the victim drove away, defendant continued firing at the victim. (Suarez I,
supra, E057525.)
On August 22, 2012, a jury convicted defendant of attempted murder (§§ 187,
subd. (a), 664, subd. (a); count 1), felon in possession of a firearm (§ 29800, subd. (a);
count 2); and discharging a firearm at an occupied vehicle (§ 246; count 4). The jury also
found true as to count 1 that defendant personally discharged a firearm causing great
bodily injury (§ 12022.53, subd. (d)), and that the attempted murder was not willful,
deliberate or premeditated. As to count 4, the jury found true the allegation that
defendant personally used a firearm. Defendant admitted his prior serious felony (§ 667,
subd. (a)) and strike prior allegations (§§ 1170.12, subd. (c)(1), 667, subds. (c), (e)(1)).
The jury found defendant not guilty of street terrorism (§ 186.22, subd. (a); count 3). The
trial court sentenced defendant to 24 years four months, plus a consecutive term of 25
years to life in prison. (Suarez I, supra, E057525.)
Defendant appealed, arguing the trial court violated his constitutional rights by
failing to instruct sua sponte on attempted voluntary manslaughter based on sudden
quarrel or heat of passion, as a lesser included offense of attempted murder. We rejected
defendant’s contention, and on April 10, 2014, affirmed the judgment. (See Suarez I,
supra, E057525.)
On January 1, 2019, Senate Bill No. 1437 became effective, which amended the
felony-murder rule and the natural and probable consequences doctrine as it relates to
murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added
4
former section 1170.95 (now section 1172.6), which created a procedure for offenders
previously convicted of murder to seek retroactive relief if they could no longer be
convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.) Effective January
1, 2022, Senate Bill No. 775 clarified that “persons who were convicted of attempted
murder or manslaughter under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those persons convicted of murder
under the same theories.” (Stats. 2021, ch. 551, § 1.) This change in the law was “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.” (Sen. Bill No. 1437, § 1, subd. (f).)
On January 12, 2022, defendant in propria persona filed a petition for resentencing
pursuant to former section 1170.95.
Defendant was appointed counsel and a hearing was held on August 12, 2022.
Quoting from this court’s nonpublished opinion in defendant’s direct appeal, the
prosecutor informed the trial court that defendant had personally used a gun and “‘shot
the victim 10 times in the chest, shoulders and arms, and finger.’” The prosecutor also
noted that defendant testified that he had shot the victim because he thought the victim
had a gun, and he fled to Las Vegas. The prosecutor further pointed out that “[t]here
were no instructions given to his jury regarding aiding and abetting, natural and probable
consequences, or felony murder instructions.” Defendant’s counsel stated that she had
reviewed this court’s opinion in defendant’s direct appeal, as well as the jury instructions,
5
and objected to the petition being denied without having spoken to defendant. The trial
court denied the petition without explanation. Defendant timely appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738,
setting forth a statement of the case, a summary of the procedural background and
potential issue of whether the court erred in denying defendant relief under section
1172.6, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. In his supplemental brief, defendant argues (1) the trial court prejudicially
erred when it denied his section 1172.6 petition; (2) the court erred by engaging in
factfinding; (3) he made a prima facie showing for relief under section 1172.6 as the
record of conviction shows he was prosecuted under an imputed malice theory and thus
the court should have issued an order to show cause; (4) his due process rights were
denied when the prosecutor charged him with gang enhancement allegations to impute
malice; (5) the prosecutor misstated the law concerning gang allegations to impute malice
during closing argument; (6) the court erred in admitting expert gang testimony; and (7)
his appellate attorney was ineffective.
Preliminarily, we note that our Supreme Court recently held the procedures set out
in Wende do not apply to an appeal from a denial of relief under section 1172.6. (People
6
v. Delgadillo (2022) 14 Cal.5th 216, 222 (Delgadillo).) However, “[w]hen appointed
counsel finds no arguable issues to be pursued on appeal: (1) counsel should file a brief
informing the court of that determination, including a concise recitation of the facts
bearing on the denial of the petition; and (2) the court should send, with a copy of
counsel’s brief, notice to the defendant, informing the defendant of the right to file a
supplemental letter or brief and that if no letter or brief is filed within 30 days, the court
may dismiss the matter. [Citations.] [¶] If the defendant subsequently files a
supplemental brief or letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion. The filing of a
supplemental brief or letter does not compel an independent review of the entire record to
identify unraised issues.” (Id. at pp. 231-232.) Nonetheless, “the Court of Appeal is not
barred from conducting its own independent review of the record in any individual
section 1172.6 appeal.” (Id. at p. 232.)
The appellate review procedures employed here conform to those required under
Delgadillo. Defendant was served with counsel’s brief indicating no arguable issues
were identified for appeal, this court issued a letter inviting defendant to file his own
4
personal letter or brief and he did so. In addition to considering the issues raised in
4
This court’s notice to defendant did not inform him the appeal could be
dismissed if he did not file a personal brief. However, since defendant filed his own
personal brief, which we now evaluate and address on its merits, the lack of notice of
potential dismissal had no effect on the disposition of the appeal and caused no harm to
defendant.
7
defendant’s personal brief, we have conducted an independent review of the record.
(Delgadillo, supra, 14 Cal.5th at p. 232.)
A. Legal Background
Effective January 1, 2019, the Legislature passed Senate Bill No. 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.’” (People v. Gentile (2020) 10
Cal.5th 830, 846-847; see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature
accomplished this by amending sections 188 and 189.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of [s]ection 189, 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.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a d eath 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, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The person was a
8
major participant in the underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of [s]ection 190.2.” (Stats. 2018, ch. 1015, § 3.)
Effective January 1, 2022, Senate Bill No. 775 expanded eligibility for relief to
include individuals convicted of “attempted 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.” (§ 1172.6, subd. (a), as amended by
Stats. 2021, ch. 551, § 2; Legis. Counsel’s Dig., Sen. Bill No. 775 (2021-2022 Reg.
Sess.).) But it did not expand eligibility for relief pursuant to section 1172.6 to one who
is the actual person who commits murder or attempted murder.
Senate Bill No. 1437 also created a procedure for offenders previously convicted
of felony murder or murder under the natural and probable consequences doctrine to seek
retroactive relief if they could no longer be convicted of murder under the new law.
(§ 1172.6, subd. (a); People v. Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis
(2021) 11 Cal.5th 952, 959; People v. Strong (2022) 13 Cal.5th 698, 708.) “[T]he
process begins with the filing of a petition containing a declaration that all requirements
for eligibility are met [citations], including that ‘[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189
made effective January 1, 2019’ . . . .” (People v. Strong, supra, at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary declaration and other
required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
9
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.” (Ibid.)
In People v. Lewis, supra, 11 Cal.5th 952, our Supreme Court explained that
petitioners who request counsel “are entitled to the appointment of counsel upon the
filing of a facially sufficient petition . . . .” (Id. at p. 957.) “[O]nly after the appointment
of counsel and the opportunity for briefing may the superior court consider the record of
conviction to determine whether ‘the petitioner makes a prima facie showing that he or
she is entitled to relief.’” (Ibid.) “‘“[T]he court takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the petitioner would be
entitled to relief if his or her factual allegations were proved. If so, the court must issue
an order to show cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary hearing.’” (Id.
at p. 971.) Importantly, “[i]n reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “Senate Bill [No.]
1437 relief is unavailable if the defendant was either the actual killer, acted with the
intent to kill, or ‘was a major participant in the underlying felony and acted with reckless
indifference to human life . . . .’” (People v. Strong, supra, 13 Cal.5th 698 at p. 710.)
C. Analysis
Here, defendant’s record of conviction shows that he was the actual person who
attempted to kill the victim. Defendant admitted that he shot the victim because he
10
believed the victim had a gun. Moreover, as the prosecutor informed the trial court at the
August 12, 2022 prima facie hearing, there were no instructions given to defendant’s jury
regarding aiding and abetting, the natural and probable consequences doctrine, or the
felony murder rule.
In addition, there is no indication in the record to support defendant’s claim that
the trial court improperly engaged in factfinding. And even if the trial court
impermissibly engaged in factfinding, the asserted error was harmless since defendant
was the sole perpetrator who attempted to kill the victim. (People v. Lewis, supra, 11
Cal.5th 952 at p. 973 [“when an ‘error is purely one of state law, the Watson harmless
error test applies’” and the defendant must show it is reasonably probable he would have
obtained a more favorable result absent the error].) Defendant was not an aider and
abettor or major participant; he was the direct perpetrator of the crime. (See Delgadillo,
supra, 14 Cal.5th at p. 233 [no entitlement to relief under section 1172.6 where the
petitioner was the actual killer and only participant in the killing arising from a traffic
accident and prosecuted as second degree murder under an actual implied malice theory
and as gross vehicular manslaughter while intoxicated].) Thus, even if the trial court had
considered the whole record, it would have come to the same conclusion.
As to defendant’s contentions relating to his underlying trial, those claims are not
properly before us. Because defendant appealed from a denial of his petition for
resentencing pursuant to section 1170.95, he could only raise issues related to the denial
of the petition. Defendant’s underlying case is long final. Thus, defendant’s arguments
11
related to the trial, i.e., admission of expert gang testimony, charging defendant with gang
participation, and prosecutor’s closing argument, are improper.
We also reject defendant’s claim that his appellate counsel was ineffective. A
claim of ineffective assistance of appellate counsel requires a showing of both deficient
performance and prejudice. (In re Reno (2012) 55 Cal.4th 428, 488.) Appellate counsel
has the duty to prepare a legal brief containing citations to the appellate record and
appropriate authority. Counsel must set forth all arguable issues and cannot argue the
case against his or her client. Failure of “appellate counsel to raise crucial assignments of
error, which arguably might have resulted in a reversal” deprives an appellant of effective
assistance of appellate counsel. (In re Smith (1970) 3 Cal.3d 192, 202-203.) However,
the fact that appellate counsel followed the procedure set forth in Wende is insufficient,
by itself, to show appellate counsel has been ineffective. Defendant has made no claim
that counsel’s conduct either fell below professional standards or prejudiced him in any
way.
In sum, defendant was the sole perpetrator of the killing. He was not prosecuted
under the natural and probable consequences doctrine or under the felony murder rule,
nor was the jury instructed on either of these theories. Defendant is therefore ineligible
for relief under section 1172.6 as a matter of law. (See § 1172.6, subd. (a) [“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
12
consequences doctrine, or manslaughter may file a petition with the court” to have the
conviction vacated].) The trial court did not err in denying defendant’s request for relief
under section 1172.6.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
13