Filed 8/24/23 P. v. Quinarez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B321649
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA113917)
v.
JUAN CARLOS QUINAREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Rob B. Villeza, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
In September 2020, we affirmed defendant and appellant
Juan Carlos Quinarez’s conviction of murder and attempted
murder. (People v. Lomeli (Sept. 22, 2020, B297259)
[nonpub. opn.].) He now appeals from the denial of his petition
for resentencing pursuant to Penal Code section 1172.6 (former
§ 1170.95). Shortly before this appeal was filed, former
section 1170.95 was renumbered and recodified as section 1172.6
with no change in the text. (Stats. 2022, ch. 58, § 10.) For
clarity, we refer to former section 1170.95 only by its new
designation (§ 1172.6).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2016, A.M-L. and J.E. attended a birthday party
for their friend, A.L. The other guests at the home were mostly
A.L.’s family members, including his parents and his brother G.L.
We refer to the victims by their initials to protect their privacy.
(People v. Lomeli, supra, B297259.)
Sometime after midnight, A.M–L. and J.E. decided to head
home. They walked across the street to where J.E.’s car was
parked and got in. Before they could pull away from the curb, an
SUV pulled alongside them and stopped. A.L. and G.L. heard
some sort of commotion and started walking toward where the
cars were parked. (People v. Lomeli, supra, B297259.)
Three people, two wearing hoodies and one wearing a hat,
got out of the SUV and asked A.M–L. and J.E. where they were
from. A.M–L. understood the question as asking whether they
belonged to a gang. A.M–L. said they were from nowhere. J.E.
got out of the car and exchanged words with the individuals and
very quickly a physical altercation erupted between J.E. and one
of the individuals from the SUV. J.E. looked like he needed help
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so A.M–L. got out of the car. Almost immediately after he
confronted one of the attackers, shots rang out. A.M–L. was hit
multiple times and fell to the ground, as did J.E. (People v.
Lomeli, supra, B297259.)
G.L. and A.L. ran towards the melee, worried about their
two friends, but the shooter turned toward them. Both of them
saw muzzle flashes, so they turned and ran in the opposite
direction to take cover. (People v. Lomeli, supra, B297259.)
J.E. received multiple gunshot wounds, including a fatal
one to his head. A.M–L. suffered multiple nonfatal gunshot
wounds to his right arm and shoulder, his left hip, the left side of
his head and his chin. G.L. and A.L. were uninjured. (People v.
Lomeli, supra, B297259.)
Defendant was charged, along with codefendant Jose Luis
Lomeli, with one count of murder (Pen. Code, § 187, subd. (a);
count 1), and three counts of attempted murder (§§ 187, subd. (a),
664; counts 2–4). Gang and firearm use allegations were also
pled (§§ 186.22, 12022.53, subds. (b)–(e)(1)).
The case proceeded to a joint jury trial in September 2018.
The prosecution’s theory was that codefendant Lomeli was the
shooter and that defendant aided and abetted his crimes. The
prosecution’s evidence at trial included the testimony of Megan
Anzelde, Lomeli’s girlfriend. She testified pursuant to a leniency
agreement and received a sentence of seven years in prison.
(People v. Lomeli, supra, B297259.)
Ms. Anzelde testified that Lomeli was the leader of the
Townsmen criminal street gang with the nickname Villain. She
knew defendant by his gang moniker, Loco. Lomeli was known
for always carrying a loaded nine-millimeter handgun.
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Ms. Anzelde saw Lomeli habitually carry it openly in front of
defendant. (People v. Lomeli, supra, B297259.)
On the night of the shooting, Ms. Anzelde was with Lomeli,
defendant and two other Townsmen gang members, Jesse Nunez,
known as Crooks, and the other known as Dreamer. They were
at Dreamer’s house drinking and doing methamphetamine. At
some point, Lomeli said that the younger gang members
(including defendant and Nunez) needed some “schooling” and to
be shown what “old school gang banging was about.” He was
holding his handgun at the time. (People v. Lomeli, supra,
B297259.)
Sometime after midnight, Ms. Anzelde, Lomeli, defendant
and Nunez left Dreamer’s house in a white SUV driven by
Ms. Anzelde. Lomeli was in the front passenger seat and Nunez
and defendant were seated behind them. Ms. Anzelde heard
either defendant or Nunez say that someone was “hitting up” a
wall, meaning someone was writing graffiti. They were in
Townsmen territory. Lomeli told Ms. Anzelde to make a U-turn,
turn off her headlights and go back. She complied. (People v.
Lomeli, supra, B297259.)
Ms. Anzelde saw two males (whom she did not recognize)
“jogging” across the street toward a parked car. She stopped the
SUV next to the car but kept the engine running. Lomeli,
defendant and Nunez got out. Lomeli asked the two men where
they were from. One of them replied they were from nowhere.
(People v. Lomeli, supra, B297259.)
Lomeli then said, “Townsmen” and the man standing next
to the driver’s side of the car (J.E.) replied “Fuck Townsmen.”
A fistfight erupted. Ms. Anzelde did not see who threw the first
punch. Everything happened very fast. All five men were
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moving around in close quarters, but her attention was on
Lomeli. At some point, Lomeli hit J.E. in the head with the butt
of his handgun, and he fell down. Fighting continued and
eventually shots rang out. Ms. Anzelde believed Lomeli fired
maybe 10 shots. (People v. Lomeli, supra, B297259.)
The jury found the murder of J.E. to be in the first degree
and that the attempted murder of A.M–L. was premeditated.
The jury convicted defendant of first degree murder and one
count of attempted murder, and found true the gang allegation
and the allegation a principal used and discharged a firearm
during the commission of the offenses as to both counts. The jury
acquitted defendant of the other two counts of attempted murder
regarding A.L. and G.L.
We affirmed the convictions of defendant and codefendant
Lomeli. (People v. Lomeli (Sept. 22, 2020, B297259) [nonpub.
opn.].)
While defendant’s direct appeal was pending, the
Legislature passed Senate Bill 1437 (2017–2018 Reg. Sess.),
amending Penal Code sections 188 and 189 to narrow accomplice
liability for felony murder and eliminate the natural and
probable consequences doctrine as it relates to murder.
(Stats. 2018, ch. 1015, § 2, § 3.) Senate Bill 1437 also added
section 1172.6 which sets forth a procedure for individuals
convicted of felony murder or murder under a natural and
probable consequences theory to petition for resentencing.
(Stats. 2018, ch. 1015, § 4.)
The Legislature also subsequently passed Senate Bill 775
(2021–2022 Reg. Sess.) which, among other things, extended
sentencing relief to those convicted of murder under a theory
where “malice is imputed to a person based solely on that
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person’s participation in a crime” and to those convicted of
attempted murder. (Stats. 2021, ch. 551, § 2.)
In January 2022, defendant filed his resentencing petition
in propria persona, checking the boxes that he was convicted of
murder and attempted murder under a theory of felony murder,
the natural and probable consequences doctrine or other theory
in which malice was imputed to him and that he could no longer
be convicted under the amended murder statutes. He sought
appointment of counsel.
Because the judge that presided over the trial was no
longer available, defendant’s petition was assigned to a new
judge. The court appointed counsel for defendant. The People
filed opposition and defendant, through appointed counsel, filed a
reply.
At a hearing on June 15, 2022, the court heard argument
from counsel. The court said it had reviewed the parties’ briefs,
the abstract of judgment, the charging document, preliminary
hearing transcript, jury instructions and this court’s opinion from
the direct appeal. The court denied defendant’s petition, finding
he was not eligible for relief as a matter of law.
This appeal followed. We grant defendant’s request to take
judicial notice of this court’s opinion in the direct appeal in People
v. Lomeli, supra, B297259.
DISCUSSION
Defendant contends the record of conviction “strongly
suggest[s]” he was convicted of murder and attempted murder on
a theory of vicarious liability—that malice was imputed to him
based solely on his participation with the actual killer, Lomeli.
Defendant argues the jury instructions were ambiguous on intent
to kill and says the trial court should have ordered an evidentiary
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hearing and required the prosecution to prove guilt under the
amended murder statutes. We do not agree.
We conclude the record of conviction conclusively
establishes defendant’s ineligibility for sentencing relief and
therefore affirm the denial of his petition. (People v. Ervin (2021)
72 Cal.App.5th 90, 101 [appellate court reviews de novo the
denial of a resentencing petition at the prima facie stage].)
1. Applicable Law
The Legislature amended Penal Code sections 188 and 189
“ ‘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. Strong (2022)
13 Cal.5th 698, 707–708.)
To effectuate this goal, Penal Code section 1172.6 was
enacted to provide a means for individuals convicted under the
former law to petition for relief. As originally enacted, Senate
Bill 1437 limited the right to resentencing relief to those
individuals convicted of murder under the felony-murder rule or
the natural and probable consequences doctrine. (People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis).) The Legislature
subsequently expanded the scope of those authorized to file
resentencing petitions to include individuals convicted of
attempted murder and to those convicted of murder “under any
theory under which malice is imputed to a person based solely on
that person’s participation in a crime.” (Stats. 2021, ch. 551.)
The trial court’s prima facie inquiry of a resentencing
petition is “limited.” (Lewis, supra, 11 Cal.5th at p. 971.) Lewis
instructs that the court’s review at the prima facie stage may
include consideration of the record of conviction from which a
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finding of ineligibility may be made as a matter of law. “ ‘[I]f the
record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.” ’ ” (Ibid.; accord, People v. Harden (2022)
81 Cal.App.5th 45, 52 [court may deny a petition at the prima
facie stage if the petitioner is ineligible for relief as a matter of
law].)
2. Analysis
The jury was not instructed with felony murder or the
natural and probable consequences doctrine, as defendant
concedes. We reject defendant’s contention the jury instructions
allowed the jury to convict him on a theory of imputed malice or
were otherwise ambiguous on intent to kill.
The jury was instructed with CALCRIM Nos. 520, 521, 600
and 601 which accurately explain first and second degree murder,
express and implied malice, premeditated attempted murder and
the prosecution’s burden to establish the crimes of murder and
attempted murder. CALCRIM No. 252 told them that the crimes
of murder and attempted murder required “proof of the union, or
joint operation, of act and wrongful intent.”
On the principle of direct aiding and abetting, the jury was
instructed: “To prove that a defendant is guilty of a crime based
on aiding and abetting that crime, the People must prove that:
[¶] 1. The perpetrator committed the crime; [¶] 2. The
defendant knew that the perpetrator intended to commit the
crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator committing
the crime; [¶] AND [¶] 4. The defendant’s words or conduct did
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in fact aid an abet the perpetrator’s commission of the crime.”
(CALCRIM No. 401.)
The jury was told that “Someone aids and abets a crime if
he or she knows of the perpetrator’s unlawful purpose and he or
she specifically intends to, and does in fact, aid, facilitate,
promote, encourage or instigate the perpetrators’ commission of
that crime.” (CALCRIM No. 401.)
The jury found codefendant Lomeli committed a first degree
murder and a premeditated attempted murder, necessarily
concluding Lomeli acted with express malice, i.e., intent to kill.
(CALCRIM No. 521 [“A defendant acted willfully if he intended to
kill.”]; CALCRIM No. 601 [same].) The jury found defendant
aided and abetted Lomeli in those crimes. Therefore, the jury
necessarily found that defendant knew Lomeli intended to kill
and engaged in acts to aid and abet his crimes knowing of his
intended purpose.
Defendant argues that aiding a perpetrator with knowledge
of the perpetrator’s intent to kill is not the same as sharing that
intent. He says “the jury by its verdict did not necessarily find
the element of malice now required” by the amended murder
statutes. He relies on People v. Langi (2022) 73 Cal.App.5th 972
(Langi) and says it is “of no moment” that Langi concerned
second degree murder. The argument is without merit.
That Langi involved second degree murder is precisely the
point. Langi concluded that “the standard aiding-and-abetting
instructions are ill suited to the crime of second degree murder”
(Langi, supra, 73 Cal.App.5th at p. 982) and a killing by one who
acted with a conscious disregard for life. There is nothing in the
Langi analysis that would apply to a first degree murder
committed with express malice.
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The jury instructions and verdict unequivocally
demonstrate defendant was found guilty of participating in the
charged crimes with express malice. Defendant is therefore
ineligible for relief as a matter of law and the trial court did not
err in failing to conduct an evidentiary hearing.
Defendant also raises a constitutional argument based on
the due process clause and Eighth Amendment. However, this
argument was not raised in the trial court and therefore has been
forfeited.
DISPOSITION
The order denying defendant and appellant Juan Carlos
Quinarez’s petition for resentencing is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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