Opinion
B317778
11-07-2022
THE PEOPLE, Plaintiff and Respondent, v. FREDDY AMBRIZ, Defendant and Appellant.
Eric R. Larson, 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, Senior Assistant Attorney General, Charles S. Lee and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA376570, Renee Korn, Judge. Affirmed.
Eric R. Larson, 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, Senior Assistant Attorney General, Charles S. Lee and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
Appellant Freddy Ambriz was convicted of murder in 2011. In 2019, he petitioned under former Penal Code section 1170.95 (now section 1172.6) to vacate his murder conviction. The superior court issued an order to show cause and following an evidentiary hearing, denied the petition. Over appellant's objection, the court considered the factual summary in this court's decision in appellant's direct appeal of his conviction. Challenging the denial of his petition, appellant contends the superior court erred in relying on the prior appellate opinion's factual summary. As discussed below, we agree the court erred, but conclude the error was harmless, as the essential facts underlying appellant's offense are undisputed, and the superior court relied on the trial evidence itself in denying appellant's petition.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in the text. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer only to section 1172.6.
BACKGROUND
A. Appellant's Conviction and Subsequent Proceedings
In 2011, a jury found appellant guilty of first degree murder. As relevant here, the jury was instructed on alternative theories of liability: direct aiding and abetting, and the natural and probable consequences doctrine. On direct appeal, this court ordered the modification of his sentence but otherwise affirmed. (People v. Ambriz (Sep. 6, 2013, No. B238305) 2013 Cal.App.Unpub. LEXIS 6371, at *30.)
"Under the natural and probable consequences doctrine, '[a]n aider and abettor is guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime.'" (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 433-434, disapproved of on another ground by People v. Valencia (2021) 11 Cal.5th 818, 839, fn. 17.) Before Senate Bill No. 1437 (2017-2018 Reg. Sess.; SB 1437), a murder conviction under this doctrine required no proof of malice by the defendant. (People v. Gentile (2020) 10 Cal.5th 830, 838, 845 (Gentile).)
In 2017, the superior court granted appellant's petition for writ of habeas corpus under People v. Chiu (2014) 59 Cal.4th 155 (Chiu), vacating his conviction for first degree murder after concluding that the jury may have convicted him on a natural and probable consequences theory. The People elected not to retry appellant. His conviction was reduced to second degree murder, and he was resentenced accordingly.
In Chiu, our Supreme Court held that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. (Chiu, supra, 59 Cal.4th at 158-159.)
B. Appellant's Petition and the Prior Appellate Opinion
In 2019, appellant petitioned to vacate his murder conviction under section 1172.6. As relevant here, he alleged that he had been convicted of murder under the natural and probable consequences doctrine, and that he was not the actual killer, did not act with the intent to kill, and was not a major participant in an underlying felony acting with reckless indifference to human life.
After the superior court appointed counsel for appellant, the People filed an opposition, attaching this court's opinion in the prior appeal and relying on it to argue that appellant had aided and abetted a murder with the intent to kill and was therefore ineligible for relief. The prior opinion included a summary of the evidence at trial. According to the opinion, appellant and his brother, Fernando, were members of the Playboys gang. Two weeks before the murder, appellant and Fernando had been in a fight with Ivan Matthews. Later that day, appellant and Fernando drove by Matthews, fired a few shots in the air, and yelled the name of their gang. That night, appellant repeatedly drove by Matthews's home and shouted various slurs. On the day of the murder, Matthews was waiting for his friends when he saw appellant driving a white van, with Fernando in the passenger seat. Several minutes later, Matthews saw the van again, and shortly thereafter, Fernando started shooting from the passenger window. One of the bullets struck and killed Shaquana Watson, a passenger in a nearby car.
C. The Evidentiary Hearing and the Superior Court's Ruling
After receiving numerous submissions from both parties, the superior court issued an order to show cause. The parties then filed additional briefs regarding appellant's entitlement to relief. In his brief, appellant provided a summary of the evidence at trial that, while more detailed, was consistent with the prior appellate opinion's factual summary. Appellant contended that at his trial, the prosecution relied exclusively on the natural and probable consequences doctrine, and that the People were now precluded from asserting any other basis for liability.
At the evidentiary hearing on January 14, 2022, neither party presented new evidence. The People referred the court to the trial transcripts, the information, the jury instructions, the verdict, and the prior appellate opinion, including its factual summary. Appellant's counsel objected to the court's reliance on the factual summary in the prior opinion, but the court overruled the objection.
Following the hearing, the court issued a written ruling denying appellant's petition. It found beyond a reasonable doubt that appellant was a direct aider and abettor in the murder, acting with intent to kill, and was therefore ineligible for relief under section 1172.6. While the written ruling's statement of the trial evidence was similar to the prior appellate opinion's factual summary, the superior court's discussion of appellant's intent to kill referenced facts not included in the prior opinion. For instance, the superior court noted that in the fight that preceded the murder, Matthews punched appellant in the face and knocked him down to the ground, and that appellant drove by Matthews's house shouting slurs on four different occasions between the fight and the murder. Appellant timely appealed.
The superior court rejected appellant's argument that the People were now precluded from asserting a theory of express or implied malice.
DISCUSSION
Appellant contends the superior court erred in considering the prior appellate opinion's statement of facts. As discussed below, we agree, but conclude the error was harmless, as the essential facts of appellant's offense were undisputed, and the superior court relied on the trial evidence itself in denying the petition.
A. Governing Principles
Section 1172.6 permits a defendant who was convicted of murder under the natural and probable consequences doctrine to petition the sentencing court to have the conviction vacated and to be resentenced on any remaining counts when, inter alia, the petitioner could not be convicted of murder after SB 1437. (See § 1172.6, subd. (a)(3).) Among other changes, SB 1437 eliminated the natural and probable consequences doctrine as it relates to murder, by adding section 188, subdivision (a)(3), which provides that, with limited exceptions, "in order to be convicted of murder, a principal in a crime shall act with malice aforethought," and that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); see Gentile, supra, 10 Cal.5th at 846.)
After ascertaining that the petition contains certain required information, the court must determine whether the petitioner has made a prima facie showing of entitlement to relief. (§ 1172.6, subd. (c).) If the court finds the petitioner has made a prima facie showing, it must issue an order to show cause and hold an evidentiary hearing on the petitioner's eligibility for relief. (§ 1172.6, subds. (c)-(d).) "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 . . . under California law as amended by [SB 1437]. (§ 1172.6, subd. (d)(3).)
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) amended section 1172.6, subdivision (d)(3), to state that at the evidentiary hearing, the court may consider "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3).) Courts have interpreted this language to "prevent[] a trial court from relying on facts recited in an appellate opinion . . . ." (People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9, italics added; accord, People v. Flores (2022) 76 Cal.App.5th 974, 988 ["the factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner's eligibility for resentencing"]; see also People v. Clements (2022) 75 Cal.App.5th 276, 292 [stating in dicta that "specificity" of amendment "indicates the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a section [1172.6] petition reaches the stage of a full-fledged evidentiary hearing"].)
We evaluate the erroneous admission of evidence at a section 1172.6 evidentiary hearing under the harmless error standard for state law error articulated in People v. Watson (1956) 46 Cal.2d 818. (People v. Myles (2021) 69 Cal.App.5th 688, 706 (Myles).) "Under the Watson harmless error standard, it is the burden of appellants to show that it is reasonably probable that they would have received a more favorable result at trial had the error not occurred." (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447 (Christ).)
B. Analysis
Although the superior court erred in considering the prior appellate opinion's factual summary of the case, appellant has not shown that the error was prejudicial. He therefore provides no basis for reversal. The essential facts of appellant's offense were undisputed before the superior court and remain undisputed on appeal. Indeed, in his opening brief in this appeal, appellant "adopts the Statement of Facts contained in [the prior appellate opinion]" as a summary of the evidence presented at his trial, and asserts no relevant conflict in the evidence. Moreover, in explaining its finding that appellant acted with the intent to kill, the superior court referenced facts not mentioned in the prior appellate opinion's factual summary, establishing that the court relied on the trial evidence itself, rather than the prior opinion's characterization of it. Without showing that the court's consideration of the prior appellate opinion's factual summary made some difference in the case, appellant cannot establish reversible error. (See Myles, supra, 69 Cal.App.5th at 706; Christ, supra, 2 Cal.App.5th at 447.)
Appellant contends the superior court's error was prejudicial because "the vast majority of the summary of the evidence cited by the superior court . . . was largely taken verbatim from the summary of the evidence contained in the prior opinion on direct appeal." He does not contend, however, that the prior opinion's summary of the evidence influenced the court's analysis and ruling. Absent a meaningful and unfavorable variation between the evidence in the record and the prior opinion's factual summary, the erroneous consideration of the latter suggests no prejudice. (Cf. People v. Houston (2005) 130 Cal.App.4th 279, 296 [where erroneously admitted evidence is merely cumulative of other evidence, error will be deemed harmless].)
DISPOSITION
The superior court's order is affirmed.
We concur: WILLHITE, J., COLLINS, J.