Filed 3/17/23 P. v. Valtierra CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084524
Plaintiff and Respondent,
(Fresno Super. Ct. No. F19908265)
v.
HILEBERTO VALTIERRA, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Fresno County. Alvin M.
Harrell III, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Franson, Acting P. J., Meehan, J. and De Santos, J.
INTRODUCTION
In 2020, appellant and defendant Hileberto Valtierra (appellant) was found guilty,
after a jury trial, of second degree murder and attempted second degree murder, with
firearm enhancements, and was sentenced to an aggregate third strike term of 200 years
to life.
In 2022, appellant filed a petition for resentencing of his convictions pursuant to
Penal Code section 1172.61 and asserted he was convicted based on theories of imputed
malice. The trial court appointed counsel, conducted a hearing, and denied relief without
issuing an order to show cause.
Shortly after the decision in People v. Delgadillo (2022) 14 Cal.5th 216
(Delgadillo), appellant’s counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436. Appellant filed a supplemental brief on his own behalf. After conducting
a review of the record and reviewing his contentions, we affirm the trial court’s denial of
his petition.
FACTUAL AND PROCEDURAL BACKGROUND
On January 28, 2020, an information was filed in the Superior Court of Fresno
County charging appellant with committing the following offenses on December 9, 2019:
count 1, first degree murder of Angel Trejo (§ 187), and count 2, attempted premeditated
murder of Esteban Trejo (§§ 664, 187), with enhancements for both counts that he
personally and intentionally discharged a firearm causing great bodily injury or death
(§ 12022.53, subd. (d)).2
1
All further statutory citations are to the Penal Code unless otherwise indicated.
Appellant filed his petition under former section 1170.95, which was renumbered
as section 1172.6 without substantive change on June 30, 2022. (People v. Saibu (2022)
81 Cal.App.5th 709, 714; Stats. 2022, ch. 58 (Assem. Bill. 200), § 10, eff. June 30, 2022.)
As such, we refer to the subject statute by its current number throughout this opinion.
2 The information alleged the victim in count 1 was John Doe, but the verdict form
states the victim was Angel Trejo.
2.
In counts 3, 4, and 5, appellant was charged with assault with a firearm on,
respectively, Hermando German Rodriguez, Leticia Rodriguez-Alejo, and Jane Doe
(§ 245, subd. (a)(2)), with enhancements for personal use of a firearm, a handgun
(§ 12022.5, subd. (a)).
It was further alleged appellant had two prior strike convictions based on juvenile
adjudications for murder and assault with a firearm, both found true in 2000. (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)).
Jury Trial and Instructions
In or about August 2020, appellant’s jury trial was held. The court instructed the
jury on homicide (CALCRIM No. 500); the definition of murder, and express and
implied malice (CALCRIM No. 520); first degree murder and premeditation (CALCRIM
No. 521); that provocation could reduce first degree murder to second degree murder or
manslaughter (CALCRIM No. 522); lawful self-defense as a complete defense
(CALCRIM No. 505); that murder could be reduced to manslaughter based upon sudden
quarrel or heat of passion (CALCRIM No. 570) or imperfect self-defense (CALCRIM
No. 571); attempted murder and the intent to kill (CALCRIM No. 600); premeditated
attempted murder (CALCRIM No. 601); attempted voluntary manslaughter based on
sudden quarrel or heat of passion (CALCRIM No. 603) or imperfect self-defense
(CALCRIM No. 604); and the section 12022.53, subdivision (d) firearm enhancements
attached to counts 1 and 2 (CALCRIM No. 3149).
The jury was not instructed on felony murder, the natural or probable
consequences doctrine, aiding and abetting, or any theory of imputed malice.
Verdicts
On August 21, 2020, appellant was found not guilty of count 1, first degree
murder, but guilty of the lesser included offense of second degree murder of Angel Trejo,
and the section 12022.53, subdivision (d) enhancement was found true.
3.
As to count 2, appellant was found not guilty of attempted first degree murder, but
guilty of the lesser included offense of attempted second degree murder of Esteban Trejo,
with the section 12022.53, subdivision (d) enhancement found true.
Appellant was found guilty as charged in counts 3, 4, and 5, assault with a firearm,
and the personal use enhancements found true.
On August 24, 2020, the court found the two prior strike convictions were true.
Sentencing
On September 22, 2020, the trial court sentenced appellant to an aggregate third
strike term of 200 years to life plus a determinate term of 30 years, as follows: count 1,
second degree murder, 45 years to life plus 25 years to life for the section 12022.53,
subdivision (d) personal discharge enhancement; count 2, attempted second degree
murder, a consecutive term of 30 years to life plus 25 years to life for the personal
discharge enhancement; and for each of counts 3,4, and 5, consecutive terms of 25 years
to life plus 10 years for the section 12022.5, subdivision (a) firearm enhancements
attached to those counts.
It does not appear that appellant filed a notice of appeal.
APPELLANT’S PETITION FOR RESENTENCING
On January 24, 2022, appellant filed, in pro. per., a petition in the trial court for
resentencing of his murder and attempted murder convictions, pursuant to section 1172.6,
and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where
he checked boxes that (1) he was eligible for resentencing because a complaint,
information, or indictment was filed that allowed the prosecution to proceed under a
theory of felony murder, 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, or attempted murder under the natural and probable
consequences doctrine; (2) he was convicted of murder, attempted murder, or
4.
manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could
have been convicted of murder or manslaughter; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to sections 188 and
189, effective January 1, 2019.
The Parties’ Briefs and Appointment of Counsel
On February 17, 2022, the district attorney filed opposition with supporting
exhibits consisting of the jury instructions and verdict forms from appellant’s trial. The
district attorney argued that the instructions showed the jury was not instructed on felony
murder, the natural and probable consequences doctrine, or any theory of imputed malice,
and appellant was convicted as the actual killer and not entitled to relief.
On March 16, 2022, appellant filed, in pro. per., a supplemental brief in support of
his petition, and argued the trial evidence and new “exculpatory facts” raised doubts that
he was the actual killer, and the district attorney’s closing argument relied on the natural
and probable consequences doctrine.
On April 19, 2022, the court appointed counsel to represent appellant.
On May 31, 2022, the People filed supplemental opposition, and argued that
appellant’s claims about imputed malice were based on CALCRIM No. 520, that
instruction addressed implied malice, the jury was not instructed on imputed malice or
the natural and probable consequences doctrine as addressed by the amendments enacted
by Senate Bill No. 1437, and the instructions showed appellant was properly convicted as
the actual killer.
The Court’s Hearing on the Petition
On June 3, 2022, Judge Alvin M. Harrell III, who presided over appellant’s jury
trial, held a hearing as to whether appellant’s petition stated a prima facie case for relief.
Appellant’s counsel waived appellant’s presence.
5.
The court denied the petition and stated that, while it did not remember the case, it
was “going by representation of counsel that this was the individual who specifically,
personally, intentionally discharged a firearm.”
Appellate Briefing
On June 21, 2022, appellant filed a timely notice of appeal.
On December 20, 2022, appellate counsel filed an opening brief pursuant to
Wende, that summarized the facts with citations to the record, raised no issues, and asked
this court to independently review the record, and included the declaration of appellate
counsel indicating that appellant was advised he could file his own brief with this court.
Also, on December 20, 2022, this court sent a letter to appellant inviting him to
submit additional briefing.
On January 25, 2023, appellant filed, in pro. per., a supplemental brief with this
court arguing that he is eligible for resentencing even though the jury found the
section 12022.53, subdivision (d) firearm enhancement true; his attorney at the hearing
on the petition was prejudicially ineffective for failing to raise certain arguments at his
request; the trial court failed to consider his mental state or his alleged new evidence that
he was not guilty; and he lacked the ability to form the intent to kill.
Correction of the Record
On October 31, 2022, appellate counsel advised the trial court that at the
sentencing hearing, it imposed determinate terms of 10 years for each of the
section 12022.5, subdivision (a) firearm enhancements attached to counts 3, 4, and 5, but
the abstract of judgment erroneously stated the attached enhancements were for
indeterminate terms of 10 years to life. Counsel requested correction of the abstract.
On November 1, 2022, the trial court filed an amended abstract of judgment and
corrected appellant’s sentence to reflect that it imposed determinate terms of 10 years for
the section 12022.5, subdivision (a) personal use enhancements attached to each of
counts 3, 4, and 5.
6.
DISCUSSION
I. Appellate Review and Delgadillo
On December 19, 2022, the California Supreme Court issued its opinion in
Delgadillo, supra, 14 Cal.5th 216, and held a Wende analysis is not applicable to a trial
court’s order that denies a petition for postconviction relief under section 1172.6.
(Delgadillo, at p. 222.) Delgadillo held that instead of using the process outlined in
Wende, appointed counsel and the appellate court should do the following: “When
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.” (Delgadillo, at pp. 231–232.)
“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. [Citation.] If the
defendant does not file a supplemental brief or letter, the Court of Appeal may dismiss
the appeal as abandoned. [Citation.] If the appeal is dismissed as abandoned, the Court
of Appeal does not need to write an opinion but should notify the defendant when it
dismisses the matter. [Citation.] While it is wholly within the court’s discretion, the
Court of Appeal is not barred from conducting its own independent review of the record
in any individual section 1172.6 appeal.” (Delgadillo, supra, 14 Cal.5th at p. 232.)
Delgadillo stated in that case, appellate counsel filed a Wende brief, along with a
declaration that counsel advised the defendant that he could personally file a
supplemental brief raising any issues. The appellate court sent a notice to the defendant
that he could file a supplemental brief, but that notice did not state the appeal would be
7.
dismissed if he failed to do so. (Delgadillo, supra, 14 Cal.5th at pp. 223–224.)
Delgadillo held the appellate court’s notice to the defendant was “suboptimal” because
“it indicated that the Wende procedures would apply when they did not, and it did not
inform [the defendant] that the appeal would be dismissed as abandoned if no
supplemental brief or letter was filed.” (Id. at p. 222.)
As a result, Delgadillo conducted its own independent review of the record
“voluntarily in the interest of judicial economy,” and determined the defendant was not
entitled to relief under section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 222.)
Analysis
On December 20, 2022, less than 24 hours after Delgadillo was filed, appellant’s
counsel filed a Wende brief with this court, that included counsel’s declaration that his
client was advised he could file his own brief with this court. By letter on the same day,
this court informed appellant that he could file a letter in this matter stating any grounds
that he wanted this court to consider, and if he did not do so within 30 days, “the court
will assume you have nothing further to add.”
As in Delgadillo, this court’s notice must be deemed “suboptimal” because
appellant was not informed that his appeal would be dismissed as abandoned if he did not
file a supplemental brief or letter.
On January 25, 2003, appellant filed, in pro. per., a supplemental brief with this
court and argued he was eligible for relief under section 1172.6 based on several
contentions.
Accordingly, we will address appellant’s contentions and conduct our own
independent review of the record. (Delgadillo, supra, 14 Cal.5th at p. 233.)
II. Section 1172.6
We turn to Senate Bill No. 1437’s (2017–2018 Reg. Sess.) (Senate Bill 1437)
amendments of sections 188 and 189, the enactment of section 1172.6, and subsequent
statutory amendments.
8.
“Effective January 1, 2019, Senate Bill … 1437 … amended the felony-murder
rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in
the qualifying felony is liable for felony murder only if the person: (1) was the actual
killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and
abettor; or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. [Citation.] The Legislature also amended the natural and
probable consequences doctrine by adding subdivision (a)(3) to section 188, which states
that ‘[m]alice shall not be imputed to a person based solely on his or her participation in a
crime.’ ” (People v. Harden (2022) 81 Cal.App.5th 45, 50–51; People v. Strong (2022)
13 Cal.5th 698, 707–708 (Strong).)
“Senate Bill 1437 also created a special procedural mechanism for those convicted
under the former law to seek retroactive relief under the law as amended,” codified in
section 1172.6. (Strong, supra, 13 Cal.5th at p. 708, fn. omitted.) The original version of
the statute permitted “a person with an existing conviction for felony murder or murder
under the natural and probable consequences doctrine to petition the sentencing court to
have the murder conviction vacated and to be resentenced on any remaining counts if he
or she could not have been convicted of murder as a result of the other legislative changes
implemented by Senate Bill … 1437.” (People v. Flores (2020) 44 Cal.App.5th 985,
992.)
Effective January 1, 2022, Senate Bill No. 775 (2020–2021 Reg. Sess.) (Senate
Bill 775) amended section 1172.6 and “ ‘clarifie[d] that persons who were convicted of
attempted murder or manslaughter under a theory of felony murder and the natural [and]
probable consequences doctrine are permitted the same relief as those persons convicted
of murder under the same theories.’ ” (People v. Birdsall (2022) 77 Cal.App.5th 859,
865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)
Section 1172.6, subdivision (a) thus states:
9.
“(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 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 and to be resentenced on any remaining
counts when all of the following conditions apply:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder, 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, or attempted murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder.
“(3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a), italics added.)3
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).)
After service of the petition, the prosecutor shall file and serve a response. The petitioner
may file and serve a reply after the response is served. (Id., subd. (c).)
“After the parties have had an opportunity to submit briefings, the court shall hold
a hearing to determine whether the petitioner has made a prima facie case for relief. If the
petitioner makes a prima facie showing that the petitioner is entitled to relief, the court
shall issue an order to show cause. If the court declines to make an order to show cause, it
shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
3While not applicable herein, section 189 was amended to allow for felony-
murder liability where the victim is a peace officer. (§ 189, subd. (f).)
10.
If an order to show cause is issued, “the court shall hold a hearing to determine
whether to vacate the murder, attempted murder, or manslaughter conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.…” (§ 1172.6, subd. (d)(1).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under California law as amended by
the changes to Section 188 or 189 made effective January 1, 2019. The admission of
evidence in the hearing shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing or trial that is admissible
under current law, including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural history of the case recited
in any prior appellate opinion. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the
hearing as hearsay, unless the evidence is admissible pursuant to another exception to the
hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence
to meet their respective burdens.…” (§ 1172.6, subd. (d)(3).)4
The prima facie determination is a question of law, and the trial court may deny a
petition at the prima facie stage if the petitioner is ineligible for resentencing as a matter
of law. (People v. Lewis (2021) 11 Cal.5th 952, 966 (Lewis).)
Lewis announced a prejudicial error standard under People v. Watson (1956)
46 Cal.2d 818, that if the court failed to appoint counsel or violated the petitioner’s
4 “If such evidence may not be considered at an evidentiary hearing to determine a
petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could
establish, as a matter of law, a petitioner’s ineligibility for resentencing” in determining
whether he made a prima facie case for relief. (People v. Flores (2022) 76 Cal.App.5th
974, 988.)
11.
statutory rights under former section 1170.95, the petitioner must “therefore ‘demonstrate
there is a reasonable probability that in the absence of the error he [or she] … would have
obtained a more favorable result.’ ” (Lewis, supra, 11 Cal.5th at p. 974.) To demonstrate
prejudice from the denial of a former section 1170.95 petition before the issuance of an
order to show cause, the petitioner must show it is reasonably probable that, absent error,
his or her petition would not have been summarily denied without an evidentiary hearing.
(Lewis, supra, 11 Cal.5th at pp. 972–974; see People v. Watson, supra, 46 Cal.2d at
p. 836.)
III. Appellant Was Ineligible for Relief as a Matter of Law
In determining whether a petitioner made a prima facie case for relief, the court
may review the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 971–972 & fn. 6.)
The record of conviction allows the court “to distinguish petitions with potential merit
from those that are clearly meritless. This is consistent with the statute’s overall purpose:
to ensure that … culpability is commensurate with a person’s actions, while also ensuring
that clearly meritless petitions can be efficiently addressed as part of a single-step prima
facie review process.” (Id. at p. 971.)
The jury instructions are part of the record of conviction and may be reviewed to
make the prima facie determination, because the instructions “given at a petitioner’s trial
may provide ‘readily ascertainable facts from the record’ that refute the petitioner’s
showing, and reliance on them to make the eligibility or entitlement determinations may
not amount to ‘factfinding involving the weighing of evidence or the exercise of
discretion,’ ” which must wait to occur until after an order to show cause issues. (People
v. Soto (2020) 51 Cal.App.5th 1043, 1055, overruled to the extent that it is not
inconsistent with Lewis, supra, 11 Cal.5th 952.)
“If the petition and record in the case establish conclusively that the defendant is
ineligible for relief, the trial court may dismiss the petition.” (Strong, supra, 13 Cal.5th
at p. 708.)
12.
Analysis
The trial court complied with the procedural requirements of section 1172.6 by
appointing counsel, requesting briefing, and conducting a hearing. We note that the same
judge presided over appellant’s jury trial but stated he could not remember the case. The
court denied the petition without issuing an order to show cause, by accepting the district
attorney’s representation that appellant “was the individual who specifically, personally,
intentionally discharged a firearm,” that was presumably based upon the true findings on
the section 12022.53, subdivision (d) enhancements attached to the murder and attempted
murder convictions.
To the extent the court erroneously made factual findings based upon the
enhancements, such reliance is not prejudicial if it is reasonably probable that, absent
error, appellant’s petition would have been summarily denied without an evidentiary
hearing. (Lewis, supra, 11 Cal.5th at pp. 972–974; People v. Watson, supra, 46 Cal.2d at
p. 836.)
As explained above, the district attorney submitted the complete set of instructions
given to the jury and the verdict forms, which may be considered as part of the record of
conviction. Aside from the personal discharge enhancements, the jury was instructed that
to find appellant guilty of murder and attempted murder, it had to find he acted with
express or implied malice, and he intended to kill the victims. The jury was not
instructed on the felony-murder rule, the natural and probable consequences doctrine,
aiding and abetting, or any theory of imputed malice.
The jury instructions and verdict thus demonstrate appellant is ineligible for relief
under section 1172.6 as a matter of law, and the court’s improper factual findings were
not prejudicial.
Appellant’s Contentions
Appellant’s supplemental briefing raises several contentions that his petition stated
a prima facie case for relief.
13.
Offley and Section 12022.53, Subdivision (d)
First, appellant argues the trial court improperly denied relief without issuing an
order to show cause because it relied on the jury’s true findings on the section 12022.53,
subdivision (d) enhancements attached to murder and attempted murder charges.
Appellant’s argument is based upon People v. Offley (2020) 48 Cal.App.5th 588, where
petitioner Offley was one of five defendants charged with participating in a gang-related
shooting. He was charged with murder, attempted murder, and shooting into an occupied
vehicle. (Id. at p. 592.) The People presented evidence showing a conspiracy among the
defendants. The jury was instructed that a member of a conspiracy is guilty not only of
the particular crime he knows his confederates agreed to and committed, but also for the
natural and probable consequences of any crime of a coconspirator to further the object of
the conspiracy. Petitioner was convicted of murder, attempted murder, and shooting into
an occupied vehicle, and the jury found true the section 12022.53, subdivision (d)
enhancement, that he personally used and intentionally discharged a firearm proximately
causing death to the victim. (Offley, at p. 593.) Thereafter, he filed a petition for
resentencing, claimed he was convicted based on theories of imputed malice, and it was
denied. (Id. at p. 594.)
Offley held the trial court erroneously denied the petition without issuing an order
to show cause: “Because an enhancement under section 12022.53, subdivision (d) does
not require that the defendant acted either with the intent to kill or with conscious
disregard to life, it does not establish that the defendant acted with malice aforethought.”
(Offley, supra, 48 Cal.App.5th at p. 598.) While the record of conviction might otherwise
establish the petitioner was not convicted based on imputed malice, “[i]n this case, … we
cannot rule out the possibility that the jury relied on the natural and probable
consequences doctrine in convicting [the petitioner]. The trial court instructed the jury on
the natural and probable consequences doctrine as part of its instruction on conspiracy
liability[] .… (Id. at p. 599.) “The jury might have concluded that [the petitioner]
14.
intended to take part in a conspiracy to commit assault with a firearm, or to fire into an
occupied vehicle, with the aim of either injuring or merely frightening [the victim]. The
jury could have then concluded that [the victim’s] death was the natural and probable
consequence of the conspiracy and convicted [the petitioner] of murder without finding
beyond a reasonable doubt that he acted with malice aforethought. For this reason, we
cannot say that [that petitioner] ‘is ineligible for relief as a matter of law.’ ” (Id. at
p. 599.)
As explained above, the entirety of the instructions on murder and attempted
murder establish that appellant was not convicted based on any theories of imputed
malice. As for the personal discharge enhancements, in contrast to Offley, there were no
instructions given in this case that would have permitted the jury to convict appellant of
murder or attempted murder without finding beyond a reasonable doubt that he had acted
with malice aforethought and the intent to kill.
CALCRIM No. 520
Next, we note that in his supplemental briefing filed with the trial court, appellant
argued the district attorney relied on the natural and probable consequences doctrine in
his closing argument and addressed “imputed malice.” While the reporter’s transcript of
closing argument is not before this court, appellant provided quotes from that argument
that allegedly supported his assertions, where the prosecutor addressed the murder charge
and “ ‘implied malice.’ ”
The record refutes appellant’s assertions about imputed malice. Based upon
appellant’s own briefing, it is clear that the prosecutor was addressing implied malice as
it related to the charge of murder. The jury was instructed with CALCRIM No. 520, that
defined murder, and express and implied malice, and stated the defendant acted with
implied malice if he intentionally committed an act; the natural and probable
consequences of the act were dangerous to human life; at the time he acted, he knew his
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act was dangerous to human life; and he deliberately acted with conscious disregard for
human life.
CALCRIM No. 520’s definition of implied malice is not the same as the natural
and probable consequences doctrine or imputed malice. “Second degree implied malice
murder … is not based on a theory of imputed malice.” (People v. Schell (2022)
84 Cal.App.5th 437, 444.) “Although the instructions related to implied malice and the
natural and probable consequences doctrine of aiding and abetting include similar
language regarding a ‘natural consequence,’ they are distinctly different concepts.”
(People v. Soto, supra, 51 Cal.App.5th at p. 1056; People v. Cortes (2022)
75 Cal.App.5th 198, 205.) Senate Bill 1437 eliminated natural and probable
consequences liability for second degree murder based on imputed malice, but implied
malice remains a valid theory of second degree murder. (People v. Gentile (2020)
10 Cal.5th 830, 850; People v. Schell, supra, 84 Cal.App.5th at p. 444.)
Allegations of Trial Error
In his supplemental brief filed with this court, appellant argues that at the hearing
on his section 1172.6 petition, the trial court failed to address issues he raised in his pro.
per. brief filed in support of his petition about various evidentiary issues at his jury trial,
including his alleged mental state at the time of the crimes, that he lacked the intent to
kill, and his claims of new evidence.
Section 1172.6 “does not permit a petitioner to establish eligibility on the basis of
alleged trial error.” (People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn. omitted.)
“The mere filing of a section [1172.6] petition does not afford the petitioner a new
opportunity to raise claims of trial error or attack the sufficiency of the evidence
supporting the jury’s findings. To the contrary, ‘[n]othing in the language of section
[1172.6] suggests it was intended to provide redress for allegedly erroneous prior
factfinding.… The purpose of section [1172.6] is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not previously determined, not to
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provide a do-over on factual disputes that have already been resolved.’ ” (People v.
Farfan (2021) 71 Cal.App.5th 942, 947.) The trial court was not required to address
appellant’s claims of trial error.
Allegations of Ineffective Assistance
Finally, appellant argues the attorney who was appointed to represent him at the
section 1172.6 hearing was prejudicially ineffective by failing to file briefing, address the
merits of the issues he raised in his own pro. per. brief, and failing to raise his claims of
trial error. As explained above, the entirety of the record reflects appellant was ineligible
for relief under section 1172.6 as a matter of law, he could not raise claims of trial error
at the section 1172.6 hearing, and an attorney is not ineffective for failing to raise
meritless objections or motions. (People v. Lucero (2000) 23 Cal.4th 692, 732.)
The jury instructions and verdict demonstrate appellant is ineligible for relief
under section 1172.6 as a matter of law, and the court correctly denied his petition for
failing to state a prima facie case.
DISPOSITION
The court’s order of June 3, 2022, denying appellant’s petition, is affirmed.
17.