Filed 12/16/21 P. v. Bernal CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B311547
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA287120-02)
v.
ARTURO BERNAL,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Craig E. Veals, Judge. Affirmed.
Arturo Bernal, in pro. per., Jean Ballantine, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
________________
Arturo Bernal and codefendant Jose L. Perez, both
members of the Mara Salvatrucha (MS-13) criminal street gang,
were convicted following a jury trial of the 2003 murder of a rival
gang member in territory claimed by the Leeward clique of
MS-13. Both men were found guilty of second degree murder
with true findings on firearm-use and criminal street gang
enhancements. Bernal was sentenced to an aggregate
indeterminate state prison term of 40 years to life. We affirmed
the conviction and sentence on appeal. (People v. Perez (Jan. 11,
2010, B209761 [nonpub. opn.].)
On February 21, 2019 Bernal, representing himself, filed a
petition for resentencing pursuant to Penal Code section 1170.95,1
asserting he had been convicted of murder under the natural and
probable consequences doctrine or felony-murder rule and could not now
be convicted of murder because of amendments to Penal Code
sections 188 and 189 effective January 1, 2019. Counsel was appointed
to represent him.
The prosecutor filed an opposition to the petition arguing, in part,
Bernal was ineligible for resentencing as a matter of law because the
record of conviction established Bernal was the shooter and had acted
with express malice and neither the natural and probable consequences
doctrine nor the felony-murder rule had been argued at trial. Appointed
counsel and then privately retained counsel filed additional memoranda
in support of Bernal’s petition.
After hearing argument the superior court denied the petition
noting the jury had found true the firearm-use enhancement alleging
Bernal had personal used and intentionally discharged a firearm
proximately causing death (§ 12022.53, subd. (d)), and ruling “the record
1 Statutory references are to this code.
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more than adequately presents evidence to conclude that he was a
shooter in this case and that he was directly responsible.”
No arguable issues have been identified following review of
the record by Bernal’s appointed appellate counsel. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Bernal in
his supplemental brief. We affirm.
FACTUAL BACKGROUND
1. The Shooting
As summarized in our opinion affirming Bernal’s and
Perez’s convictions, in the early morning hours of February 7,
2003 the manager of an apartment building at Magnolia and
8th Street in Los Angeles heard gunshots and men running down
the stairs from the roof and out into the street. The manager did
not see any of the men’s faces. Later that morning the manager
went to the roof and found the body of Otto Reyes, a member of
the Drifters criminal street gang, a rival of MS-13. Reyes died
from three gunshot wounds.
Cesar Ramos, a resident of the building, saw a number of
people, including Perez, running down the stairs. Ramos had
seen Perez before and was able to identify him from a photo
array. No eyewitness identified Bernal. None of the fingerprints
found at the scene matched either defendant.
2. The Taped Conversation
Central to the prosecution’s case was the testimony of Jorge
Pineda, an FBI informant, and a telephone conversation among
Pineda, Bernal and Perez that Pineda had recorded. Pineda
understood from his conversation that both Bernal and Perez
took credit for the murder.
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In the taped conversation Perez referred to the murder of
the Drifters gang member as an example of how he and Bernal
had done “other crazy shit, other work” in the past. Perez told
Pineda, “I got that dude good. Ask Little Smiley [Bernal]. Little
Smiley did him.” At that point in the taped conversation there
were sounds like giggling. Perez told Pineda that Gato from the
Drifters gang had unknowingly come onto MS-13 territory to buy
drugs and Perez led Gato up on the roof. Bernal then interjected
that he told another MS-13 gang member that Gato was from
“Downfall,” a derogatory term for Drifters. That individual
approached Gato and hit him. As Gato was getting up, Perez told
everyone to move away. Perez said he then “put a piece of metal
in his head . . . bang, bang, bang.” “And when he was about to hit
the ground, Little Smiley was coming and . . . with his: bang,
bang, bang. Just because he is stubborn Bro.” At that point
there was more giggling. Pineda testified he understood from the
conversation that both Bernal and Perez were taking credit for
the murder.
3. Jury Instructions
The trial court instructed the jury with CALJIC Nos. 8.10,
defining murder; 8.11, defining express and implied malice; 8.20,
explaining the elements of deliberate and premeditated murder;
and 8.30 and 8.31, explaining second degree murder. The court
also gave a series of instructions regarding voluntary
manslaughter and the jury’s responsibility to determine which, if
any, offense had been committed. In addition, the court defined
“principals” (CALJIC No. 3.00) and instructed the jury on the
elements of culpability as a direct aider and abettor (CALJIC
No. 3.01). There were no instructions on the felony-murder rule
or the natural and probable consequences doctrine.
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4. Verdict
The jury convicted Bernal of second degree murder and
found true the special allegation that in the commission of the
offense Bernal had personally and intentionally discharged a
firearm proximately causing the death of Reyes within the
meaning of section 12022.53, subdivision (d). The jury separately
found true the special allegation that a principal had personally
and intentionally discharged a firearm proximately causing
Reyes’s death within the meaning of section 12022.53,
subdivisions (d) and (e)(1).
DISCUSSION
1. Senate Bill No. 1437
Senate Bill No. 1437 (Stats. 2018, ch. 1015) substantially
modified the law relating to accomplice liability for murder,
eliminating the natural and probable consequences doctrine as a
basis for finding a defendant guilty of murder (People v. Gentile
(2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly
narrowing the felony-murder exception to the malice requirement
for murder. (§§ 188, subd. (a)(3), 189, subd. (e)(3); see People v.
Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) It also authorized,
through new section 1170.95, an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not have been convicted of murder because of Senate
Bill No. 1437’s changes to the definition of the crime. (Lewis, at
p. 957; Gentile, at p. 843.)
In determining whether a petitioner has carried the burden
of making a prima facie showing he or she falls within the
provisions of section 1170.95 and is entitled to relief, it is
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appropriate to examine the record of conviction, “allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.)
Appellate opinions “are generally considered to be part of the
record of conviction,” (id. at p. 972), as are the jury instructions
given at trial (see, e.g., People v. Jenkins (2021) 70 Cal.App.5th
924, 935).
2. Bernal’s Appeal
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Bernal on appeal.
After reviewing the record, Bernal’s counsel filed a brief raising
no issues. Appointed counsel advised Bernal on August 24, 2021
that he had 30 days to submit a brief or letter raising any
grounds of appeal, contentions or arguments he wanted the court
to consider. We thereafter granted Bernal two extensions of time
to file his supplemental letter brief.
On November 29, 20, 2021 we received a 10-page
handwritten supplemental letter brief (plus exhibits) from Bernal
that asserts, in essence, he is entitled to be resentenced under
section 1170.95 because CALJIC No. 8.11 instructed the jury that
malice is implied when the killing is the natural consequences of
an intentional act, performed with knowledge of the danger to,
and conscious disregard for human life. Bernal’s argument
misconstrues the meaning of the “natural consequences”
language as required for a finding of implied malice, which
relates to proximate cause (the actus reus element of the crime of
murder), confusing it with culpability under the natural and
probable consequences doctrine as an aider and abettor of a
nonhomicide target offense, which concerns the defendant’s
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mental state (mens rea). (See People v. Mancilla (2021)
67 Cal.App.5th 854, 868 & fn. 5.)
As the Supreme Court explained in Gentile, supra,
10 Cal.5th at pages 843 to 844, “Our law recognizes two forms of
liability for aiders and abettors. [Citation.] First under direct
aiding and abetting principles, an accomplice is guilty of an
offense perpetrated by another if the accomplice aids the
commission of that offense with ‘knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’ [Citation.] [¶] Second, under
the natural and probable consequences doctrine, an accomplice is
guilty not only of the offense he or she directedly aided or abetted
(i.e., the target offense), but also of any other offense committed
by the direct perpetrator that was the ‘natural and probable
consequence’ of the crime the accomplice aided and abetted (i.e.,
the nontarget offense). . . . [¶] Unlike direct aiding and abetting
liability, culpability under the natural and probable consequences
theory does not require an accomplice to share the direct
perpetrator’s intent.”
Here, whether Bernal or Perez or both of them fired shots
that fatally wounded Reyes, the jury found that Bernal acted
with the requisite mental state (either express or implied malice)
to be found guilty as a principal in Reyes’s murder—as the actual
perpetrator or as a direct aider and abettor of the actual
perpetrator who was aware of and shared the perpetrator’s mens
rea. That finding of direct culpability was underscored by the
jury’s additional true finding that Bernal had personally and
intentionally discharged a firearm causing Reyes’s death. There
was no imputation of malice, and no finding of guilt based on a
theory of vicarious liability. (See People v. Offley (2020)
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48 Cal.App.5th 588, 596 [“[o]ne who directly aids and abets
another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law”].)
Bernal’s supplemental letter brief also challenges the
sufficiency of the evidence supporting his murder conviction and
identifies several purported errors (including judicial misconduct)
he claims deprived him of a fair trial in 2008. None of those
issues is properly before us in this appeal from the denial of his
postjudgment petition for resentencing relief.
Because the record of conviction establishes Bernal was not
convicted of murder under the felony-murder rule or the natural
and probable consequences doctrine, he is ineligible for
resentencing relief under section 1170.95 as a matter of law. The
superior court properly denied his petition without issuing an
order to show cause. (See Lewis, supra, 11 Cal.5th at p. 971.)
Because no cognizable legal issues have been raised by
Bernal’s appellate counsel or by Bernal or identified in our
independent review of the record, the order denying the
postjudgment motions is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
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DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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