Opinion
F085195
11-14-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY ESPARZA, Defendant and Appellant.
Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. SC083180A. Kenneth C. Twisselman II, Judge.
Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2002, appellant and defendant David Anthony Esparza (appellant) was convicted after a jury trial of attempted murder and other offenses. On appeal, this court ordered the sentence corrected and otherwise affirmed the judgment.
In 2022, the trial court denied appellant's Penal Code section 1172.6 petition for resentencing, and found he failed to make a prima facie case because the jury instructions showed the jury was not instructed on the felony-murder rule or the natural and probable consequences doctrine.
All further statutory citations are to the Penal Code.
On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted a supplemental brief. We will address his contentions and affirm the trial court's denial of his petition.
This court granted appellant's request to take judicial notice of the record and the nonpublished opinion in People v. Esparza (June 18, 2003, F039944) [nonpub. opn.], from which the following factual summary is taken. In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) We have quoted the factual statement from appellant's direct appeal to place his current arguments in context, and will not rely on that factual statement to resolve his appeal from the trial court's order that found his petition did not state a prima facie case for relief.
"Threatening and Brandishing
"While Thomas Roman was walking home on February 3, 2001, at approximately 1:30 p.m., a dark blue Suburban pulled up along side him. Roman knew the driver, 'David,' as the brother of a girl Roman's brother Jose was dating. David was alone in the vehicle. He called Roman's name, pointed a black nine-millimeter handgun at Roman's forehead, and said he was going to kill Roman and Roman's brother Anthony because they had hit his sister and called her names.
"Roman stood paralyzed with fear. He had no prior problems with David and, in fact, he had seen him only once before. Nor was Roman aware of any conflict between his brother and David or, for that matter, between his brother and David's sister. Roman had not hit David's sister. Roman's assailant smiled and drove off.
"Roman reported the incident with David to the police. The detective assigned to the case, Joe Giuffre, played 'phone tag' with Roman for several months. On May 2, 2001, Roman quickly identified appellant as his assailant from a photographic line up. At trial, Roman testified that he was 'very certain' appellant was the man who had threatened and assaulted him.
"Maria Chappa, appellant's sister, testified she had an ongoing relationship with Jose Roman, Thomas Roman's brother. They have a child together. Their relationship caused inter-family discord, as the Romans did not like her. Thomas Roman, in particular, remained a constant annoyance and spread lies about her. However, no one in the family had ever struck her.
"Attempted Murder and Assault
"On March 12, 2001, John Perkins, his girlfriend Diana Pimental, and his friend Chad Jackson, went to a house on Garber Way to collect a debt from a man named Leonel. Pimental's mother had rented Leonel a room and he owed her approximately $80 for an unpaid phone bill. Pimental and her mother made an unsuccessful attempt to collect the money two weeks prior. That Friday, Leonel told them he would have the money on Monday, the 12th.
"Pimental and Perkins approached the front door and asked for Leonel. Jackson stayed in the car. When Leonel came out he said he did not have the money, but offered them two parrots instead. When Pimental stated she did not want the parrots, Leonel became angry and said he would not pay Pimental's mother. Perkins, in turn, became angry because Leonel was belligerent, and an argument ensued. Pimental translated the exchange between the two men as Perkins did not speak Spanish.
"According to Pimental, Leonel threatened to kill, or have someone kill, Perkins. Leonel was laughing as he said it, so Pimental did not take it seriously at the time. Perkins challenged Leonel to 'come out and do it,' but Pimental persuaded Perkins to leave with her so there would not be a fight. Pimental gave Perkins a ride home and did not see him again that evening.
"Still angry at Leonel's behavior, Perkins decided to collect some friends and go back to the residence that evening. Approximately 10 friends gathered at a park two houses away, while Perkins, his 15-year-old brother Gary, and Chad Ybarra walked up to the house. A little girl in the yard pointed at him, said 'that's him, the one in the white shirt,' then a man came out of the house, ran towards the fence, and started shooting. Perkins, who was still in the street, turned and ran for his life. Gary testified that no words or gestures were exchanged prior to the shooting. Perkins denied that anyone with him had a weapon.
"Five or six shots were fired. Perkins was hit in the back of his head, but kept running. Although bleeding and in pain, he made it to the house of a friend some three blocks away. An ambulance was called and Perkins was taken to the hospital. Perkins was lucky; the bullet entered his scalp, slid across the skull without penetrating it, then exited.
"Perkins did not recall speaking to law enforcement prior to being taken to the hospital. Deputy Larry McCurtain testified Perkins told him at the scene that he (Perkins) had been walking down the street when he was fired upon by an unknown Mexican male for no apparent reason. When other witnesses related a different version of events, McCurtain reinterviewed Perkins at the hospital. Perkins then disclosed the earlier collection attempt and confrontation. McCurtain had difficulty obtaining details from Perkins, but he was unable to say whether Perkins was deliberately being evasive.
"Officers responding to the Garber Way residence seized an informal photograph of appellant posed with several other people, and mail addressed to appellant at that address. Approximately an hour and a half after the shooting, Perkins identified appellant as his assailant from the photograph. Within another hour Perkins was presented with a formal photographic line up and again easily identified appellant as the man who shot him. Gary Perkins could not identify anyone from the photograph or line up.
"At trial, Perkins testified that he was certain appellant was the man who shot him. He was only 10 feet away and was looking directly at the gunman when he opened fire. Perkins used to live next door to Leonel; Leonel, who is much taller and thinner than appellant, was not his attacker. No gun or shell casings were ever recovered.
"Appellant presented an alibi defense but did not testify on his own behalf. Lisa Rodriguez, ... appellant[']s [friend], testified she, her boyfriend Alex Luna, Victor Navarette, and appellant were all in Los Angeles on the day of the shooting, as Luna was scheduled for trial on narcotics charges in Fullerton that day. Navarette was subpoenaed as a witness and appellant accompanied them because he was familiar with the area and they were not. They left Bakersfield at 6:00 [a.m.] or 6:30 a.m. The court date was continued after the lunch break. They left the courthouse between 2:00 [p.m.] and 3:00 p.m., shopped, and visited with appellant's aunt before leaving southern California.
"The party returned to Bakersfield between 7:00 [p.m.] and 8:00 p.m. On their arrival they were greeted by appellant's mother (who had been babysitting Rodriguez'[s] children) who was 'frantic' over rumors that appellant was in some sort of trouble. Rodriguez learned about the shooting from the newspaper, but never contacted law enforcement regarding appellant's alibi because she did not want to get involved. She had heard the incident was gang related and feared for her safety and that of her five children.
"Victor Navarette confirmed Rodriguez's testimony in all significant respects. However, he was impeached with the fact that he initially told the investigator that the court appearance was for Alex Garza, and that a fifth person had been in the car."
PROCEDURAL BACKGROUND
The Charges
On or about November 3, 2001, an information was filed in the Superior Court of Kern County charging appellant with count 1, criminal threats to Thomas Roman (§ 422); count 2, attempted murder of John Perkins (§§ 664/187); count 3, assault with a firearm on John Perkins (§ 245, subd. (a)(2)); count 4, felon in possession of a firearm (former § 12021, subd. (a)(1)); and count 5, misdemeanor exhibiting a firearm in a threatening manner (§ 417, subd. (a)(2)), with a prior strike conviction.
As to count 2, attempted murder, it was further alleged that in the commission of the offense, appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); he personally used a firearm (§ 12022.53, subd. (b)); he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and he personally and intentionally discharged a firearm which proximately caused great bodily injury or death (§ 12022.53, subd. (d)).
As to count 3, assault with a firearm, it was alleged that appellant personally inflicted great bodily injury, and personally used a firearm (§ 12022.5, subd. (a)).
Trial and Jury Instructions
On January 2, 2002, appellant's jury trial began. The jury was instructed with CALJIC No. 8.66 on the elements of attempted murder: a direct but ineffectual act was done by one person towards killing another human being, and the person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. The jury was also instructed on the definition of express malice.
The jury was not instructed on the felony-murder rule, the natural and probable consequences doctrine, principals, accomplices, aiders and abettors, conspiracy, or any other theory of imputed malice.
Convictions and Sentence
On January 7, 2002, appellant was convicted of all counts and the special allegations were found true. In a bifurcated proceeding, the jury found the prior strike conviction allegation true.
On February 5, 2002, the court sentenced appellant as follows: count 1, criminal threats, the lower term of 16 months, doubled to 32 months as the second strike term; and for count 2, attempted murder, a consecutive term of life with the possibility of parole plus 25 years to life for the section 12022.53, subdivision (d) enhancement and three years for the section 12022.7 enhancement. The court stayed the terms for the remaining convictions and enhancements.
Direct Appeal and Resentencing
On June 18, 2003, this court filed the nonpublished opinion in appellant's direct appeal that rejected his evidentiary contentions and affirmed the convictions.
As to the sentence, we agreed with the parties that the trial court erroneously sentenced appellant to life with parole for count 2, attempted murder, because he was not charged with, and the jury did not find, that he committed the offense with premeditation. We further found the court erroneously imposed a three-year term for the great bodily injury enhancement because he was also sentenced pursuant to section 12022.53, subdivision (d). We ordered the three-year term stricken and remanded for resentencing. (People v. Esparza, supra, (F039944).)
On November 26, 2003, the trial court filed an amended abstract of judgment reflecting that as to count 2, attempted murder, appellant was sentenced to the lower term of five years, doubled to 10 years as the second strike term, plus 25 years to life for the attached firearm enhancement; and a consecutive term of 16 months (one-third the midterm, doubled) for count 1; and stayed the terms for the other convictions and enhancements.
PETITION FOR RESENTENCING
On June 30, 2022, appellant filed a petition for resentencing pursuant to section 1172.6 and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that he was eligible for resentencing because (1) a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The court appointed counsel to represent appellant and provided for the parties to file briefing.
The People's Opposition
On August 9, 2022, the prosecution filed opposition, and requested the trial court take judicial notice of the record from appellant's jury trial and the opinion from his direct appeal. The prosecution argued the record of conviction established that appellant was convicted as the actual shooter and was ineligible for resentencing as a matter of law.
Appellant's Supplemental Brief
On October 6, 2022, appellant filed, in propria persona, a supplemental brief and argued the instructions permitted the jury to convict him of attempted murder based on an imputed malice theory.
The Trial Court's Denial of Petition
On October 13, 2022, the trial court held a hearing on whether appellant's petition stated a prima facie case. The court said it had reviewed and considered appellant's petition, the People's opposition, and appellant's supplemental brief filed in propria persona. The court also reviewed the record from appellant's jury trial, "including the jury instructions and the Abstract of Judgment."
The trial court stated its tentative ruling that appellant's petition failed to state a prima facie case and he was ineligible for resentencing because "no jury instruction was given relating either to theories of felony murder or natural and probable consequences." The court also noted the jury found appellant personally used a firearm in the commission of the offense.
The trial court invited argument from the parties, and both sides submitted. The court again found appellant was ineligible for resentencing as a matter of law based on the record of conviction.
On October 27, 2022, appellant filed a timely notice of appeal.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to Wende and Delgadillo. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. In response to this court's order, appellant filed a supplemental brief, and argued the trial court erroneously relied on the preliminary hearing transcript and made factual findings to determine that his petition did not state a prima facie case for resentencing, and the matter must be remanded for an evidentiary hearing.
The elements of attempted murder are the specific intent to kill (express malice) and the commission of a direct but ineffectual act towards accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Gonzalez (2012) 54 Cal.4th 643, 653, 664; People v. Beck and Cruz (2019) 8 Cal.5th 548, 642.)
"The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) The record of conviction includes the jury instructions. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1252; People v. Offley (2020) 48 Cal.App.5th 588, 599; People v. Harden (2022) 81 Cal.App.5th 45, 50, 54-55.)
The record of conviction refutes appellant's assertions. At the hearing on appellant's petition, the trial court stated it had reviewed the parties' briefs, the jury instructions, and the abstract of judgment. The court never stated it had reviewed or was relying on the preliminary hearing transcript to make the prima facie finding. The court correctly stated the jury was not instructed on felony murder or the natural and probable consequences doctrine, and appellant was ineligible for resentencing as a matter of law. As set forth above, the jury was correctly instructed on the elements of attempted murder, and it was not instructed on any theory of imputed malice.
Appellant also argues that the jury's findings that he used or discharged a firearm did not disqualify him from resentencing under section 1172.6. Assuming without deciding the trial court erroneously relied on the jury's findings for the firearm enhancements to make the prima facie finding, such reliance was not prejudicial since the record of conviction establishes the jury was not instructed on any theory of imputed malice. (Lewis, supra, 11 Cal.5th at pp. 972-974; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The court's order of October 13, 2022, denying appellant's section 1172.6 petition for resentencing, is affirmed.
[*] Before Hill, P. J., Detjen, J. and Snauffer, J.