Opinion
B295694
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER ARZU, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA038171)
OPINION ON REHEARING
THE COURT:
Alexander Arzu (appellant) was charged with conspiring to kill George Bottoms (Bottoms) (Pen. Code, §§ 182, 187; count 1); the murder of Bottoms by discharging a handgun from a vehicle with the intent to inflict death (§§ 187, 189, 190.2, subd. (a)(21), 12022, subd. (a)(1); count 2); and assault with a firearm (§§ 245, subd. (a)(2), 12022, subd. (a)(1); count 3). In 1999, appellant was convicted on all counts. On count 2, the base count, appellant was sentenced to life without possibility of parole plus one year under section 12022, subdivision (a)(1). On count 1, he was sentenced to 25 years to life. On count 3, he was sentenced to a concurrent term of three years plus one year under section 12022, subdivision (a)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant's case went up on appeal. (People v. Arzu (June 21, 2000, B131240) [nonpub. opn.].) The ensuing opinion recounted that appellant, a gang member, stated that he had been advised that he should be "'putting in work,' i.e., participating in shootings." (People v. Arzu, supra, B131240, at p. 4.) On September 22, 1997, he drove two gang members on a mission, and they shot at a vehicle, killing one of the passengers. (People v. Arzu, supra, B131240, at pp. 3-5.) At trial, appellant testified in his own defense. "He admitted knowing in advance that the participants in [a prior] episode were going out to kill, and that when [a shot caller] ordered appellant to drive . . . on September 22, he would be accompanied by shooters, who were intending to shoot a gang member. Appellant further admitted he had driven the vehicle looking for [a rival gang member] to kill." (People v. Arzu, supra, B131240, at p. 5.) Appellant argued there was insufficient evidence to support his murder conviction and the special circumstance finding. The court determined that there was direct evidence of intent to aid and abet murder, and that the special circumstance finding was supported by evidence of intent to kill. The judgment was affirmed. (People v. Arzu, supra, B131240, at pp. 8-10.)
Senate Bill No. 1437 went into effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It added section 1170.95 and amended sections 188 and 189. "As amended, section 188 limits a finding of malice: 'Except as stated in subdivision (e) of Section 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).) As added by Senate Bill [No.] 1437, subdivision (e) of section 189 reads: 'A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) . . . in which a death 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 major participant in the underlying felony and acted with reckless indifference to human life[.]" (People v. Ramirez (2019) 41 Cal.App.5th 923, 928 (Ramirez).) Section 1170.95 permits a defendant to file a petition with the court that sentenced the defendant for resentencing if he was convicted under a theory of felony murder or murder under the natural and probable consequences doctrine, and if he could not have been convicted under the changes to sections 188 and 189 made effective January 1, 2019. (People v. Ramirez, supra, at p. 929.)
On January 3, 2019, appellant filed a petition for resentencing pursuant to section 1170.95. He declared that he was convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine. On January 15, 2019, the petition was denied. This appeal followed. Appellant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) raising no issues. On September 13, 2019, we notified appellant of his counsel's brief and gave him leave to file his own brief or letter stating grounds for appellate relief. Appellant did not file a brief or letter. There is no basis for reversal.
Appellant filed a petition for rehearing and asked us to take judicial notice of documents, including jury instructions, verdict forms, and our prior appellate opinion. We granted the petition and now clarify that appellant was convicted on a direct aiding and abetting theory. While the jury instructions indicate that the jury was instructed on direct aiding and abetting, they do not indicate that the jury was instructed on either a felony murder or natural and probable consequences theory with respect to count 1 or count 2. Though the trial court did give an instruction regarding the natural and probable consequences doctrine, it was as to count 3. It stated, "In order to find the defendant guilty of the crime of assault with a firearm, . . . you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of murder was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime committed the crime of assault with a firearm, and [¶] 4. The crime of assault with a firearm was a natural and probable consequence of the commission of the crime of murder." --------
As confirmed by the opinion in the prior appeal, there was substantial evidence that appellant aided and abetted murder with the intent to kill. Thus, he could be convicted of murder under the changes to sections 188 and 189 and was not entitled to be resentenced.
Upon due consideration, we are satisfied that appellant's counsel complied with her responsibilities. We conclude appellant has received adequate and effective appellate review of the judgment entered against him by virtue of counsel's compliance with the Wende procedure as well as our review of the record. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. /s/_________
LUI, P. J. /s/_________
ASHMANN-GERST, J. /s/_________
CHAVEZ, J.