Opinion
D075835
09-06-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANK MONICO BAZZO, Defendant and Appellant.
Frank Monico Bazzo, in pro. per.; and David Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF129919) APPEAL from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Frank Monico Bazzo, in pro. per.; and David Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, a jury convicted Frank Monico Bazzo of one count of first degree murder under a direct aiding and abetting theory and found true special circumstance allegations that the killing was carried out for financial gain (Pen. Code, § 190.2, subd. (a)(1)) and by means of lying-in-wait (Id., subd. (a)(15)). As discussed more fully in People v. Olivarez (May 5, 2011, D058082) [nonpub. opn.] (Bazzo I), the prosecution obtained the judgment of conviction under a theory that Bazzo paid and conspired with a third-party to kill the ex-husband of Bazzo's ex-wife. The trial court sentenced Bazzo to life in prison without the possibility of parole. In 2011, this court affirmed the judgment of conviction.
All further statutory references are to the Penal Code, unless otherwise noted.
We grant Bazzo's request for judicial notice of our prior unpublished opinion in Bazzo I. (Evid. Code, § 452, subd. (d); Cal. Rules of Court, rule 8.1115, subd. (b)(1).)
In 2019, Bazzo filed a pro se petition to vacate the murder conviction and obtain resentencing under section 1170.95. In the petition, Bazzo checked two pre-typed boxes indicating he "was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine" and "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code [sections] 188 and 189, effective January 1, 2019."
The People responded to the petition and argued it should be denied because Senate Bill No. 1437, which added section 1170.95 to the Penal Code and amended sections 188 and 189, was unconstitutional on various grounds. The People further argued the petition should be denied because Bazzo did not make a prima facie showing he was entitled to relief under section 1170.95. They claimed Bazzo could be convicted of first degree murder, despite the legislative amendments to sections 188 and 189, because the jury necessarily found he harbored an intent to kill when it returned true findings on the special circumstance allegations.
The trial court appointed counsel for Bazzo pursuant to subdivision (c) of section 1170.95 and set a status conference to address the petition. At the status conference, the court opined that the jury's special circumstance findings necessarily required the jury to find Bazzo harbored an intent to kill. Bazzo's appointed counsel agreed. Based on this concession, the court summarily denied the petition and declined to issue an order to show cause. Bazzo appeals.
II
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal and asks this court to review the judgment in accord with People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Pursuant to Anders, counsel lists as possible but not arguable issues: (1) whether Bazzo's petition for resentencing established a prima facie case for relief under section 1170.95, requiring the trial court to issue an order to show cause, and (2) whether the trial court erred in dismissing the petition, rather than issuing an order to show cause or denying the petition on its merits.
Additionally, we granted Bazzo the opportunity to file a brief on his own behalf and he has done so. In his brief, Bazzo raises numerous challenges to the validity of the original judgment of conviction, including challenges based on the sufficiency of the evidence, alleged instructional error, and alleged prosecutorial misconduct. However, section 1170.95 does not provide convicted defendants an opportunity to challenge or relitigate the merits of their underlying judgments of conviction. Rather, it establishes a procedure by which qualifying petitioners may obtain vacatur of their murder convictions and resentencing. Therefore, we do not consider Bazzo's arguments to the extent they attack the validity of the original judgment of conviction.
Because the procedure established by section 1170.95 does not provide an avenue for convicted defendants to challenge or relitigate the merits of their original judgments of conviction, we deny as irrelevant Bazzo's request for judicial notice of jury instructions from the underlying trial, which he contends were flawed and prejudicial to him. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.) --------
Bazzo further contends he made a prima facie showing requiring the court to issue an order to show cause and schedule a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence him on any remaining counts. However, as Bazzo's counsel correctly acknowledged during the status conference, the special circumstance findings necessarily required the jury to find Bazzo aided the killer in an intentional killing. (People v. Nelson (2016) 1 Cal.5th 513, 549 [" '[T]he lying-in-wait special circumstance requires intent to kill ....' "]; People v. Hardy (1992) 2 Cal.4th 86, 192 ["When there is evidence from which a jury could base its verdict on the theory that a defendant was a mere aider and abettor to a murder, the trial court must instruct the jury that it must find the defendant, if not the actual killer, nevertheless intended to kill."].) Therefore, Bazzo could still be convicted of first degree murder, despite the legislative amendments to sections 188 and 189, and Bazzo did not make a prima facie showing entitling him to relief under section 1170.95.
We conducted an independent review of the record, including considering the Anders issues identified by appointed appellate counsel and the points raised in Bazzo's supplemental brief. Our review did not disclose any reasonably arguable appellate issues. Bazzo has been competently represented by counsel in this appeal.
III
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: IRION, J. GUERRERO, J.