Opinion
F085674
01-26-2024
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO ALONZO MORA, Defendant and Appellant.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County, No. VCF344700H, Melinda Myrle Reed, Judge.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2022, appellant and defendant Fernando Alonzo Mora (appellant) pleaded no contest to voluntary manslaughter pursuant to a negotiated disposition and was sentenced to 26 years. A few months later, he filed a petition for resentencing pursuant to Penal Code section 1172.6. The trial court denied the petition and found he was ineligible because he had been convicted under the amended law.
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 letter brief. We review his arguments and affirm the trial court's denial of his petition.
PROCEDURAL BACKGROUND
The Grand Jury
From November 14 through December 15, 2016, a grand jury was impaneled in Tulare County to hear evidence about offenses allegedly committed by appellant and 11 codefendants.
The Indictment
On December 15, 2016, the grand jury returned an indictment that was filed against appellant and 11 codefendants and alleged 65 counts.
As relevant herein, in count 1, codefendants Pedro Enrique Sanchez, Valentine John Ornelas, Victor Manuel Chavez, Jr., and Fabian Barajas were charged with the murder of R.S. on or about September 17, 2015, with gang special circumstance (§ 190.2, subd. (a)(22)). Appellant was not charged with murder or any homicide offenses.
In count 2, appellant and codefendants Sanchez, Ornelas, Chavez, and Barajas were charged with conspiracy to commit the murder of R.S. on or about September 17, 2015 (§§ 186, subd. (a)(1); 187), with the special allegations that the crime was punishable by life imprisonment (§ 186.22, subd. (b)(5)) and the offense was committed for the benefit of a criminal street gang (§186.22, subd. (b)).
Appellant was also charged with count 3, active participation in a criminal street gang conspiracy to commit murder (§ 182.5); and count 5, felon in possession of a firearm (§ 29800, subd. (a)(1)). As to all counts, appellant was alleged to have a prior serious felony conviction and one prior strike conviction.
The Plea Hearing
On January 28, 2022, the court convened a plea hearing for appellant and codefendants Chavez and Barajas.
Defense counsel stated appellant would plead to violating section 192, voluntary manslaughter, and admit the section 186.22, subdivision (b)(1) gang enhancement and a prior strike conviction, for an aggregate second strike term of 26 years. Defense counsel for the codefendants stated they were going to agree to "the same package offer."
The prosecutor stated there was "one hiccup" because appellant, Chavez, and Barajas were charged in count 2 with conspiracy to commit murder, but appellant was not charged in count 1 with murder. The prosecutor stated the omission in count 1 was "an oversight," and it was "cleaner" to "just to go to [c]ount 2," conspiracy. The prosecutor moved to amend count 2 from conspiracy to commit murder to one charge of voluntary manslaughter. Defense counsel for appellant, Chavez, and Barajas agreed. The parties stipulated to the grand jury transcript as the factual basis for their pleas.
Thereafter, appellant pleaded no contest to voluntary manslaughter of R.S. (§ 192), and admitted the gang enhancement (§ 182.66, subd. (b)(1)) and the prior strike conviction. Chavez and Barajas entered the same pleas.
On April 25, 2022, appellant was sentenced to the upper term of 11 years, doubled to 22 years as the second strike term, plus four years for the gang enhancement, for the aggregate term of 26 years. Appellant did not file an appeal from the judgment.
APPELLANT'S PETITION
On September 6, 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 manslaughter; 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 for appellant.
The People's Opposition
On December 9, 2022, the People filed opposition and asserted that the amendments to sections 188 and 189 were effective in 2019, appellant entered his plea in 2022, after the amendments, and his plea was based on still-valid theories of liability and not on any theories of imputed malice.
The People further asserted the grand jury transcripts were part of the record of conviction, and the evidence showed appellant was convicted as a direct aider and abettor who conspired with his coparticipants to murder R.S., and he acted with intent to kill. The opposition contained the following summary of the grand jury evidence: "[Appellant] conspired with his [codefendants] to commit the murder of R.S. because he was a Northern drop out who had been supplying drugs to S.F. but was not paying rent. [Citation.] [Appellant] and three [codefendants], all active Norteno gang members, went to the home of witness S.F. on the day of the murder. [Citation.] Two of the men entered the home to speak with S.F. while [appellant] and one of the other men stayed outside. [Citation.] The men inside the residence began yelling and threatening S.F., saying that they would kill her if she did not call R.S. and tell him to come to her house. [Citation.] Fearful, S.F. eventually agreed and sent a text message to [R.S.] to lure him to her home. [Citation.] [Appellant], and his [codefendants] went to hide behind a truck on the side of the residence. [Citation.] [¶] When R.S. arrived a short time later to meet S.F., he was confronted at the door by the men waiting inside of the residence. [Citation.] [R.S.] attempted to flee, but [appellant] and his [codefendants] began chasing after him. After a brief chase, they were able to catch [R.S.] and surround him, backing him up onto a fence. [Citation.] [Appellant] and his [codefendants] were heard yelling 'get the gun!' and 'kill him!' [Citation.] At which point, a gun was produced and R.S. was shot 12 times, killing him. [Appellant] and his [codefendants] then began running down the street. [Citation.] A witness saw one of the four men hand the gun off as they fled."
The Trial Court's Denial of the Petition
On December 13, 2022, the court held a hearing as to whether appellant's petition stated a prima facie case. Appellant was not present but represented by the same defense counsel who had represented him at the recent plea and sentencing hearings.
The court stated its tentative ruling was to deny the petition, finding "the [n]atural and [p]robable [c]onsequences [d]octrine nor the [f]elony [m]urder [d]octrine at issue in previous years were not valid theories of liability at the time [appellant] entered his plea. The statutes of [the] Penal Code had been amended to reflect the only valid theories of liability at the time of [appellant's] plea. [¶] Also, it appears from the prosecutor's recitation of the facts that [appellant] was involved as a direct aider and abettor."
The court invited argument and the parties submitted the matter. The court adopted its tentative ruling and found the petition failed to state a prima facie case. The court directed defense counsel to advise appellant of the ruling. Defense counsel said he would, and that he had talked with appellant about a month earlier and "prepared him for this." The court had directed the People to prepare a transportation order, but such an order was never submitted. The court advised the parties that was something that "should be watched in the future," because it was "better to have them here from the outset."
On January 31, 2023, appellant filed a timely notice of appeal from the trial court's denial of his petition.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to Wende and Delgadillo. The brief included counsel's declaration that appellant was advised he could file his own brief with this court. This court also advised appellant that he could file a supplemental letter brief within 30 days or his appeal would be dismissed. In response to this court's order, appellant filed a letter brief raising several issues.
We begin with Senate Bill No. 1437's (2017-2018 Reg. Sess.) (Senate Bill 1437) amendments of sections 188 and 189, the enactment of section 1172.6 and subsequent statutory amendments.
"Effective January 1, 2019, Senate Bill ... 1437 ... amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People vHarden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708.)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," codified in former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708, fn. omitted.) The original version of the statute permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill ... 1437." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (Senate Bill 775) made substantive amendments to former section 1170.95 that were consistent with People v. Lewis (2021) 11 Cal.5th 952 (Lewis), and clarified" 'that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) On June 30, 2022, the statute was renumbered as section 1172.6 without further substantive changes. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)
Section 1172.6, subdivision (a) thus states:
"(a) A person convicted of felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner 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) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a.)
The court shall appoint counsel if requested by petitioner. (§ 1172.6, subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (Id., subd. (c).)
"After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) In determining whether a petitioner made a prima facie case for relief, the court may review the record of conviction that allows the court "to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.)
"In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, supra, 11 Cal.5th at p. 972.) "[T]he prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Id. at p. 971.)
To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 957-958, 972-974; People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Appellant's Absence From the Prima Facie Hearing
In his letter brief, appellant first argues the matter must be remanded because he was not personally present when the trial court denied his petition for failing to state a prima facie case. Appellant asserts the court was required to take his personal waiver of his presence.
"A criminal defendant has the right under the state and federal Constitutions to be personally present and represented by counsel at all critical stages of the trial. For purposes of the right to be present, a critical stage is 'one in which a defendant's" 'absence might frustrate the fairness of the proceedings' [citation], or 'whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" '" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465.) "Critical stages of a defendant's criminal prosecution include the imposition of sentence, a sentence modification hearing, and resentencing." (People v. Basler (2022) 80 Cal.App.5th 46, 57.)
An appellant has a federal constitutional right to be personally present at an evidentiary hearing held pursuant to section 1172.6 or competently waive his presence. (People v. Basler, supra, 80 Cal.App.5th at pp. 51, 58.) Basler explained the petitioner "had already made out a prima facie case under [former section 1170.95], entitling him to an evidentiary hearing at which the court was to 'determine whether to vacate the murder [or] attempted murder ... conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.] At that hearing the prosecution bore the burden to prove 'beyond a reasonable doubt' that [petitioner] was ineligible for resentencing. [Citation.] The statute authorizes both parties to 'offer new or additional evidence to meet their respective burdens.' [Citation.] This is 'akin to a plenary sentencing hearing' and thus a 'critical stage' in the criminal process even though it prevents imposition of a sentence greater than that originally imposed." (Id., at p. 58.)
Appellant's absence from the prima facie hearing in this case did not constitute error or require remand. Basler's holding on the evidentiary hearing has not been extended to find the hearing on the section 1172.6 prima facie determination is also a critical stage. In contrast to the evidentiary and resentencing hearings, the prima facie determination is a question of law, and the trial court may deny a petition if the petitioner is ineligible for resentencing as a matter of law based on the record of conviction. (Lewis, supra, 11 Cal.5th at p. 966; People v. Flores (2022) 76 Cal.App.5th 974, 991.)
C. The Court's Order
Appellant next argues the trial court improperly made factual findings on the prima facie determination by relying on the evidence in the grand jury transcripts.
There is a division among appellate courts on the extent to which the trial court may rely on a prior transcript to make the prima facie determination, and the issue is currently pending before the California Supreme Court. (People v. Patton (2023) 89 Cal.App.5th 649, review granted June 28, 2023, S279670 [trial court properly relied on preliminary hearing transcript to make prima facie determination]; People v. Flores, supra, 76 Cal.App.5th at pp. 988-992 [preliminary hearing transcript cannot establish ineligibility as a matter of law even if a defendant stipulated to the transcript as the factual basis for plea]; People v. Rivera (2021) 62 Cal.App.5th 217, 235 [grand jury transcript cannot be relied on for the prima facie finding]; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-1168 [preliminary hearing transcript is part of record of conviction that may be considered in determining whether a petitioner has satisfied his prima facie burden].)
Assuming, without deciding, the court erroneously made factual findings from the grand jury transcripts, in order to show prejudice from the trial court's failure to comply with the statutory provisions in section 1172.6 before the issuance of an order to show cause, a petitioner must show it is reasonably probable that, absent the error, the petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 974; People v. Watson, supra, 46 Cal.2d 818, 836.)
D. Appellant Was Ineligible as a Matter of Law
Assuming error, the trial court's citation to the grand jury transcripts was not prejudicial because, as the court also found, appellant was ineligible for resentencing as a matter of law since he entered his plea after the effective date of the amendments to sections 188 and 189.
As explained above, effective January 1, 2022, Senate Bill 775 amended former section 1170.95 (now section 1172.6) to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. (People v. Birdsall, supra, 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra, supra, 84 Cal.App.5th 377, 388.)
In this case, appellant cannot meet the three eligibility factors required in section 1172.6, subdivision (a). First, the indictment that was filed against appellant did not allow "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." (§ 1172.6, subd. (a)(1).) In this case, three codefendants were charged in count 1 with first degree murder with a special circumstance. Appellant was not charged with murder or any form of homicide. Instead, appellant was charged in count 2 with conspiracy to commit murder. "[A]ll conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder." (People v. Cortez (1998) 18 Cal.4th 1223, 1237; People v. Beck &Cruz (2019) 8 Cal.5th 548, 641; People v. Medrano (2021) 68 Cal.App.5th 177, 183.) "[A] conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice." (People v. Swain (1996) 12 Cal.4th 593, 607.) "[T]he Legislature did not intend to provide relief from convictions for conspiracy to murder through the filing of a petition under section [1172.6]." (People v. Whitson (2022) 79 Cal.App.5th 22, 35-36.) While the indictment in this case was filed before the effective date of the statutory amendments, appellant was charged with an offense that was not affected by either Senate Bills 1473 or 775. (See, e.g., People v. Reyes (2023) 97 Cal.App.5th 292.)
Appellant's petition also failed to satisfy the second requirement-that he accepted a plea to manslaughter "in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder." (§1172.6, subd. (a)(2).) Appellant was not charged with murder or attempted murder, he never went to trial, and in the six years between the filing of the indictment and the plea hearing, the charges were not amended to add homicide allegations. Instead, appellant entered his plea to the amended count 2, voluntary manslaughter, after the effective date of Senate Bill 775.
Even if the record of conviction satisfied the first and second conditions for eligibility, appellant still failed to meet the third condition-that he "could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) Appellant pleaded no contest to manslaughter in 2022, after the effective date of the amendment enacted by Senate Bill 775 that clarified manslaughter was included within these statutory provisions, so that the prosecution could not have proceeded under any invalid theories under the amended version of sections 188 and 189.
As this court recently explained, the section 1172.6 resentencing procedure does not apply to a criminal defendant like appellant, who entered his plea after the effective date of the relevant amendments and was convicted under current law. (People v. Reyes, supra, 97 Cal.App.5th at p. 292.) Appellant entered his change of plea with the advice and consent of legal counsel. When he entered his change of plea in 2022, the now invalid theories of murder and manslaughter liability had already been eliminated. As such, it is immaterial that appellant's indictment was filed in 2016 because, in the interim, appellant received the benefits of Senate Bills 1437 and 775.
We thus conclude to the extent the trial court improperly made factual findings from the grand jury transcripts, it is not reasonably probable the court would have issued an order to show cause because appellant was ineligible for resentencing as a matter of law.
DISPOSITION
The court's order of December 13, 2022, denying appellant's section 1172.6 petition, is affirmed.
[*] Before Franson, Acting P. J., Meehan, J. and DeSantos, J.