Opinion
H051157
04-05-2024
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO VEGA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. CC465927)
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
In 2008, defendant Francisco Vega was convicted by jury of first degree premeditated murder (Pen. Code, § 187). The jury also found true the allegation that defendant was armed with a firearm (§ 12022, subd. (a)(1)) and found true the special circumstance allegation that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)). Defendant was sentenced to life without the possibility of parole plus one year for the arming enhancement.
Defendant is also referred to in the record as "Francisco Vega, Jr."
All further statutory references are to the Penal Code.
In 2022, defendant filed a petition for resentencing under former section 1170.95 (now section 1172.6). In the petition, he contended that he could not be presently convicted of first degree murder because of changes in the law. The trial court denied the petition without issuing an order to show cause, finding that defendant was ineligible for relief as a matter of law based on the record of conviction.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For purposes of clarity, we refer to the statute as section 1172.6 throughout the rest of this opinion.
Defendant filed a notice of appeal from the trial court's order denying his petition for resentencing. Defendant's appointed counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) that did not raise any issues and asked this court to conduct an independent review of the record. We notified defendant that pursuant to Delgadillo, he may submit a supplemental brief on his own behalf and that failure to do so may result in the appeal being dismissed as abandoned.
Defendant has filed a supplemental brief. For reasons that we will explain, we will affirm the trial court's order denying defendant's petition for resentencing.
II. BACKGROUND
Our brief summary of the offense is for background purposes only and is taken from this court's prior opinion in defendant's direct appeal. (See People v. Vega (Aug. 30, 2010, H033004) [nonpub. opn.].) A copy of the opinion from the direct appeal is contained in the record in the current appeal. We have not relied on the statement of facts from the prior opinion in analyzing the merits of defendant's current appeal. (See Delgadillo, supra, 14 Cal.5th at p. 222, fn. 2.)
The victim was killed at his residence in 2004. Defendant and his friend Joshua Joseph were at or near the residence at the time of the killing. Defendant accompanied Joseph to and from the residence.
B. Defendant's Conviction
Defendant was convicted by jury of first degree premeditated murder (§ 187). The jury also found true an arming enhancement allegation (§ 12022, subd. (a)(1)) and found true a lying-in-wait special-circumstance allegation (§ 190.2, subd. (a)(15)). Defendant was sentenced to life without the possibility of parole plus a consecutive one-year term for the arming enhancement.
C. Defendant's First Petition for Resentencing
In 2019, defendant filed a petition for resentencing, contending that he could not presently be convicted of murder because of the changes made to sections 188 and 189. Defendant argued that he was convicted of murder under the felony-murder rule or the natural and probable consequences doctrine; that he was not the actual killer; that he did not, with the intent to kill, aid or abet the actual killer in the commission of first degree murder; and that he was not a major participant in a felony and did not act with reckless indifference to human life during the course of the crime.
In opposition, the prosecutor contended, among other arguments, that defendant was ineligible for relief because the jury found him guilty of first degree murder, found true the allegation that he committed an intentional killing while lying in wait, and was not instructed on felony murder or the natural and probable consequences doctrine. The prosecutor requested that the trial court take judicial notice of its own records from defendant's case and provided a copy of the jury instructions and verdict forms. The jury instructions reflect that the jury was not instructed on felony murder or the natural and probable consequences doctrine. Instead, the jury was instructed on direct perpetrator and aiding and abetting theories, first degree premeditated murder, and, with respect to the lying-in-wait special-circumstance allegation, the jury was instructed that it had to find that defendant intentionally killed the victim and acted with the intent to kill. The verdict forms reflect that defendant was convicted of first degree premeditated murder and that the jury found true the special circumstance allegation that defendant "intentionally killed the victim . . . by means of [l]ying in [w]ait, within the meaning of Penal Code [s]ection 190.2(a)(15) . . . ."
Defendant ultimately withdrew his petition for resentencing before the trial court ruled on the matter.
D. Defendant's Second Petition for Resentencing
On October 5, 2022, defendant filed a second petition for resentencing along with a declaration. He again contended that he was charged under a theory of felony murder or the natural and probable consequences doctrine; that he was not the actual killer; that he did not, with the intent to kill, aid or abet the actual killer in the commission of first degree murder; and that he was not a major participant in a felony and did not act with reckless indifference to human life.
In opposition, the prosecutor again contended that defendant was not eligible for relief, relying on the earlier opposition filed in response to defendant's first petition for rehearing. The prosecutor also requested judicial notice of the court's file, including the jury instructions and verdict forms.
In reply, defendant contended that he had made a prima facie showing for relief based on his petition and declaration. Defendant also requested that the court take judicial notice of the court records for the criminal case against Joshua Joseph, who the prosecutor had apparently named as the actual killer. Defendant contended that Joseph had filed a petition for resentencing and that the court had determined that Joseph made a prima facie showing for relief. Defendant contended that he was likewise entitled to an evidentiary hearing.
E. Order Denying Second Petition
After a hearing to determine whether defendant established a prima facie case for relief, the trial court denied defendant's second petition for resentencing. In a written order, the court granted the prosecutor's request for judicial notice of the records in defendant's case, including the jury instructions and verdict forms. The court explained that the record of conviction showed as a matter of law that defendant was not eligible for resentencing because he was not convicted (1) of felony murder, (2) under the natural and probable consequences doctrine, or (3) based on another theory under which malice was imputed solely based on participation in a crime. Instead, the jury was instructed on direct perpetrator and aiding and abetting theories, as well as willful, deliberate, and premeditated murder which required an intent to kill. Further, defendant was convicted of the lying-in-wait special-circumstance allegation which required an intent to kill the victim. The court denied defendant's request for judicial notice of Joseph's case. The court explained that Joseph's case contained a different record of conviction based on a plea, whereas defendant's record of conviction was based on a jury trial.
F. The Current Appeal
Defendant filed a notice of appeal from the denial of his resentencing petition.
III. DISCUSSION
A. General Legal Principles Regarding Section 1172.6
Section 1172.6 allows an eligible defendant to file a petition for resentencing based on changes in the law regarding murder. (See id., subd. (a).) The relief provided by section 1172.6 applies to a murder conviction based on "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" (id., subd. (a)), where the defendant "could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 . . . ." (Id., subd. (a)(3).) For example, as relevant here, section 188 now" 'bars a conviction for first or second degree murder under a natural and probable consequences theory.' [Citation.]" (People v. Reyes (2023) 14 Cal.5th 981, 986.)
Upon the filing of a petition for resentencing, and "[a]fter 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).) "Although at that stage a court presented with a section 1172.6 petition may not engage in factfinding that requires weighing evidence or exercising discretion, the court may consider jury instructions, jury verdicts, and other documents that are part of the record of conviction to determine whether the petitioner satisfies the conditions for relief. [Citations.]" (People v. Flores (2023) 96 Cal.App.5th 1164, 1170.) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.' [Citation.]" (People v. Strong (2022) 13 Cal.5th 698, 708.) "We review de novo a trial court's denial of a section 1172.6 petition at the prima facie stage. [Citation.]" (People v. Bodely (2023) 95 Cal.App.5th 1193, 1200.)
B. Analysis
Defendant contends in his supplemental brief that although the jury was not instructed on the natural and probable consequences doctrine, the prosecutor "did 'literally' argue for [n]atural and [p]robable [c]onsequences" to the jury. In support of this argument, defendant cites page 572 of the reporter's transcript from his trial. Defendant also contends that his case is similar to People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado), in which the appellate court remanded for an evidentiary hearing.
We are not persuaded by defendant's contentions. First, the reporter's transcript reflects that the prosecutor's reference to "natural and probable consequences" during argument to the jury was in the context of disclaiming any reliance on that theory. Specifically, the prosecutor stated the following regarding the elements of murder and the facts of the case: "Malice aforethought can be broken down into two different elements. You have express malice, which is the intent to kill, or implied malice. Implied malice is doing an act that's inherently dangerous to human life with conscious disregard for the fact that that act is dangerous and, thus doing the act anyhow, leading to the death. [¶] In this particular instance, what you have is the firing of a handgun into the body of [the victim]. You have express malice. There was an . . . unlawful intention to kill [the victim]. It's not an implied malice case. [¶] This is not one where he intentionally did the act, the natural and probable consequences[] of the act were dangerous to human life, and that he knew the act was dangerous and acted anyhow. This is a first-degree express-malice case." (Italics added.)
Second, Maldonado is distinguishable from defendant's case. In Maldonado, the trial court summarily denied the defendant's section 1172.6 petition for resentencing without holding an evidentiary hearing. (Maldonado, supra, 87 Cal.App.5th at p. 1260.) The defendant had been "charged with first degree murder (§ 187, subd. (a)), with a special circumstance allegation that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)). The jury was instructed on two theories of first degree murder: the murder was willful, deliberate and premeditated; and the murder was committed by lying in wait. The jury was also instructed on direct aiding and abetting. [Citation.] The jury was not instructed on felony-murder or the natural and probable consequences doctrine." (Ibid., italics added.) The jury found the defendant guilty of first degree murder, but the jury found not true the lying-in-wait special-circumstance allegation. (Ibid.)
In analyzing whether the trial court erred in denying the defendant's resentencing petition at the prima facie stage, the appellate court in Maldonado distinguished between lying-in-wait murder (§ 189, subd. (a)); premeditated murder (ibid.); and the lying-in-wait special circumstance (§ 190.2, subd. (a)(15)). Under section 189, first degree murder includes "murder that is perpetrated by means of . . . lying in wait, . . . or by any other kind of willful, deliberate, and premeditated killing . . . ." (Id., subd. (a).) The appellate court in Maldonado determined that "[u]nlike first degree premeditated murder, 'nothing in section 189 requires the lying in wait to have been done with the intent to kill.' [Citation.]" (Maldonado, supra, 87 Cal.App.5th at p. 1262.) The appellate court stated that in the case before it, "[t]he murder by lying in wait instruction did not instruct the jury that the perpetrator needed to intend to cause death." (Id. at p. 1266.) The appellate court reasoned that "the jury could have construed the instructions such that, 'to be guilty as an aider and abettor of [lying in wait first degree] murder, [the defendant] need only have intended to encourage the perpetrator's intentional act-in this case, [a surprise attack on the victim]-whether or not [the defendant] intended to aid or encourage [the victim's] killing, and whether or not he personally knew of and disregarded the risk of such a killing.' [Citation.]" (Ibid.) The appellate court determined that because the jury under the instructions could have convicted the defendant under a theory of imputed malice based solely on his participation in a crime, the defendant was entitled to an evidentiary hearing on his petition for resentencing. (Id. at pp. 1259, 1267, 1269.) In reaching this conclusion, the appellate court noted that the lying-in-wait special circumstance requires an intentional murder, but that in the case before the court, "[b]ecause the jury found the special-circumstance lying-in-wait allegation not true, [the jury] did not necessarily find [the defendant] intended to kill the victim." (Id. at p. 1262, fn. 3; see § 190.2, subd. (a)(15) [special circumstance murder if the "defendant intentionally killed the victim by means of lying in wait"].)
In contrast, in the present case, the jury was instructed on first degree murder based only on a theory of willful, deliberate, and premeditated murder, and that instruction required the jury to find an intent to kill by defendant. Likewise, the instruction regarding the lying-in-wait special circumstance required the jury to find that defendant intentionally killed the victim and intended to kill the victim by taking the victim by surprise. Regarding accomplice liability, the instruction on aiding and abetting required the jury to find, among other things, that defendant knew the perpetrator intended to commit the crime and that defendant intended to aid and abet the perpetrator in committing the crime. Further, the jury was instructed pursuant to CALCRIM No. 702 that "[i]n order to prove" the lying-in-wait special circumstance "for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove that the defendant acted with the intent to kill." The jury in the instant case found defendant guilty of first degree premeditated murder (§ 187) and found true the lying-in-wait special-circumstance allegation (§ 190.2, subd. (a)(15)). The instant case is therefore distinguishable from Maldonado, where the "[t]he murder by lying in wait instruction did not instruct the jury that the perpetrator needed to intend to cause death" (Maldonado, supra, 87 Cal.App.5th at p. 1266) and the jury found not true the lying-in-wait special-circumstance allegation (id. at p. 1260).
In sum, the record of conviction conclusively establishes that defendant was not convicted of felony murder, under the natural and probable consequences doctrine, or based on another theory under which malice was imputed to him based solely on his participation in a crime. (§ 1172.6, subd. (a).) As a result, the trial court properly denied defendant's petition for resentencing.
IV. DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
WE CONCUR: GREENWOOD, P.J. WILSON, J.