Opinion
G063214
07-18-2024
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR ACEVES, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. C-94165 Lewis W. Clapp, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Salvador Aceves appeals the denial of his petition for resentencing pursuant to Penal Code section 1172.6. After his attorney filed a no-issue brief under the procedures described in People v. Delgadillo (2022) 14 Cal.5th 216, appellant filed a supplemental brief on his own behalf. However, having considered appellant's claims, and having independently reviewed the record, we conclude appellant is ineligible for resentencing as a matter of law. We therefore affirm the trial court's denial order.
That section was originally housed in Penal Code section 1170.95, but it was subsequently renumbered without substantive change as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, appellant participated in a gang-related drive-by shooting that resulted in two people being shot and injured. Appellant was not the shooter, but following a jury trial he was convicted of, inter alia, conspiracy to commit murder, two counts of attempted premeditated murder, and knowingly permitting another person to discharge a firearm from his vehicle. (§§ 182, 664/187, subd. (a), 12034, subd. (b).) The trial court sentenced him to prison for 25 years to life, and we affirmed the judgment on appeal. (See People v. Paredes et al. (Dec. 30, 1994, G014337) [nonpub. opn.]; People v. Aceves (May 26, 1999, G019759) [nonpub. opn.].)
In 2023, appellant petitioned the trial court to vacate his attempted murder convictions and to be resentenced pursuant to the terms of section 1172.6. Following a response by the People and a hearing at which appellant was represented by appointed counsel, the court determined appellant was ineligible for relief because the jury found he acted with the intent to kill, and it was not instructed on any theory of imputed malice. It thus denied his petition for failing to make a prima facie case for relief.
On appeal, appointed counsel filed a brief raising no issues but requesting that we independently review the record for possible errors pursuant to People v. Delgadillo, supra, 14 Cal.5th 216. Appellant then filed a supplemental brief, as was his right under that decision. (Id. at p. 232.)
DISCUSSION
In his supplemental brief, appellant requests that we review the record to determine whether his petition was properly denied. He also asks us to correct an alleged clerical error that appears on some parole paperwork he was provided back in 2010.
Appellant's latter request is outside the purview of this appeal, which is limited to the propriety of the trial court's ruling on his petition for resentencing. (See People v. Farfan (2021) 71 Cal.App.5th 942, 947.) If appellant wants to challenge the accuracy of the parole board's records, he must first exhaust the administrative remedies that are available to him in prison. (See In re Dexter (1979) 25 Cal.3d 921, 925.)
As for appellant's resentencing request, section 1172.6 makes clear that resentencing relief is limited to defendants who were convicted of murder or attempted murder based on a theory of imputed liability, i.e., where malice was imputed to the defendant based solely on his or her participation in a crime. (§ 1172.6, subd. (a).) Appellant's jury did receive two instructions that are traditionally associated with imputed liability. However, as we now explain, the jury could not have convicted appellant of attempted murder under those instructions unless it was convinced that he personally harbored the intent to kill. Therefore, he is not entitled to relief.
The two pertinent jury instructions are CALJIC No. 3.02 and CALJIC No. 611. As given at appellant's trial, CALJIC No. 3.02 allowed the jury to find appellant guilty of attempted murder if that offense was a natural and probable consequence of another offense he aided and abetted. However, the other offense was specifically identified as murder, which requires the intent to kill. (§ 187, subd. (a); People v. Chiu (2014) 59 Cal.4th 155, 166.) Therefore, if the jury utilized CALJIC No. 3.02 to convict appellant of attempted murder, it necessarily determined he acted with malice.
Similarly, CALJIC No. 611 permitted the jury to convict appellant of attempted murder if that offense was a natural and probable consequence of a conspiracy that he agreed to be a part of. But the only conspiracy identified for the jury was the charged offense of conspiracy to commit murder, which requires the intent to kill. (People v. Medrano (2024) 98 Cal.App.5th 1254, 1267.) Thus, the jury could not have convicted appellant of attempted murder under CALJIC No. 611 without finding he personally possessed that mental state. (Ibid.)
In other words, because of the way CALJIC Nos. 302 and 611 were worded, the jury could not have convicted appellant of attempted murder based on imputed malice arising solely from his participation in a crime. Consequently, he is outside the scope of section 1172.6, and the trial court properly denied his petition for resentencing at the prima facie stage of the proceedings. (People v. Medrano, supra, 98 Cal.App.5th at pp. 1267-1268; People v. Lopez (2022) 78 Cal.App.5th 1, 14; People v. Cortes (2022) 75 Cal.App.5th 198, 205.) Having independently reviewed the entire record for possible error, we find no basis for disturbing the trial court's ruling. (See People v. Delgadillo, supra, 14 Cal.5th at pp. 233-234 [affirming the summary denial of the defendant's section 1172.6 petition because the record conclusively established that he was ineligible for resentencing].)
DISPOSITION
The trial court's order denying appellant's petition for resentencing is affirmed.
WE CONCUR: GOETHALS, J., GOODING, J.