Opinion
A165927
06-30-2023
THE PEOPLE, Plaintiff and Respondent, v. MARK FACUN ABELLA, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05000601005
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
TUCHER, P.J.
In 2007, appellant Mark Abella was convicted by a jury of charges including first degree murder (Pen. Code § 187; all undesignated sections are from this code), with the jury finding true that he personally used and discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b), (c), (d)). Abella received a sentence of 50 years to life in prison, which this court affirmed on direct appeal. On March 10, 2022, Abella filed a petition for resentencing pursuant to section 1172.6 and Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). After appointing counsel, the superior court denied this petition, ruling that Abella had failed to make a prima facie showing that he was entitled to relief. Abella has appealed that ruling, and his counsel has filed a brief pursuant to Delgadillo, supra, 14 Cal.5th 216. Because we received a letter from Abella urging us to consider the merits of his appeal, we write briefly to respond to the argument Abella has made. (Id., at p. 232.)
Abella filed his petition under former section 1170.95, which was subsequently amended effective January 1, 2022, in order "to clarify certain aspects of the law." (People v. Guiffreda (2023) 87 Cal.App.5th 112, 123.) Effective June 30, 2022, former section 1170.95 was amended again and renumbered as section 1172.6 without any substantive change. (People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3 (Delgadillo).)
Abella's letter states that the victim's friends left the scene of the crime to come back in a different car, giving them enough time to hide their gun. He urges us to consider a police report from the investigation, presumably as evidence of these facts. We decline to review the police report because the issue of whether or not the victim's friends left the scene to hide a gun is not relevant to deciding a posttrial motion under section 1172.6, and we cannot consider a police report in deciding whether or not Abella has established a prima facie basis for relief. (See People v. Lewis (2021) 11 Cal. 5th 952, 971972 (Lewis) ["trial court may look at the record of conviction . . . to determine whether a petitioner has made a prima facie case" but "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion' "].) Section 1172.6 does not allow us to reexamine all aspects of a homicide case. It only allows us to determine whether a defendant was previously convicted on a legal theory that is no longer valid, given the changes Senate Bill 1437 made to the legal definition of murder. (§ 1172.6, subd. (a).) Answering that question, we affirm the order of the superior court.
In its written order, the superior court specified what documents it considered in concluding Abella was not eligible for section 1172.6 relief. The court relied on the information, the abstract of judgment, the jury instructions, the jury verdicts, and the court's minute orders. On the basis of these documents, the superior court found the jury was not instructed on natural and probable consequences, felony murder, or any other theory of imputed malice, but only on theories of express and implied malice. These instructions and the jury's verdict and true finding together establish that appellant was convicted as the actual killer on an express malice theory, the superior court explained. Abella is, therefore, not eligible for relief under section 1172.6.
The superior court properly relied on only documents that were part of the record of conviction. (See People v. Harden (2022) 81 Cal.App.5th 45, 5260 [jury instructions and verdict forms].) And it properly concluded from those documents that Abella is not eligible for resentencing under section 1172.6. We see no evidence that the jury was instructed on felony murder, or on a theory of natural and probable consequences. Instead, we see that the jury was instructed in accordance with CALJIC 8.20, that to convict Abella of first degree murder the jury had to "find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation ...." The jury having convicted Abella pursuant to this instruction, he is not eligible or resentencing under section 1172.6. (See Lewis, supra, 11 Cal.5th at p. 971; Harden, at pp. 59-60.)
DISPOSITION
The superior court's order summarily denying the petition for resentencing is affirmed.
WE CONCUR: FUJISAKI, J. PETROU, J.