Opinion
B324085
09-27-2023
THE PEOPLE, Plaintiff and Respondent, v. EMIR RIGOBERTO ACOSTA, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BA412073, George G. Lomeli, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
COLLINS, ACTING P.J.
Appellant Emir Rigoberto Acosta appeals from the denial of his petition for resentencing under former Penal Code section 1170.95. Appellant contends the trial court erred by denying his petition at the evidentiary hearing as a matter of law, without making factual findings. He further contends the error entitles him to automatic resentencing under section 1172.6, subdivision (d)(3), because the prosecution necessarily failed to sustain its burden of proof and cannot be afforded another opportunity to do so. We reject these contentions and affirm.
All undesignated statutory references are to the Penal Code. 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. All further references to the statute will be to the new section number.
FACTUAL BACKGROUND
Both appellant and respondent Attorney General have reproduced verbatim in their briefs the lengthy statement of facts from the opinion in appellant's direct appeal, People v. Acosta (May 5, 2017, B267775) [nonpub. opn.]. We summarize the most salient facts from that opinion here for background purposes.
We granted respondent's unopposed request for judicial notice of the appellate record from that appeal.
On May 25, 2013, Areli Rojas and Jose Baltazar held a backyard party to celebrate their son's baptism and first birthday. Areli's cousin, Fredy Rojas, was not invited to the party. Fredy nevertheless attended with several companions, including appellant. Fredy helped himself and his companions to beer, and got the DJ to give a shoutout to the El Hoyo Maravilla gang.
We refer to individuals with the same last name by their first names for clarity. No disrespect is intended.
Fredy became upset after engaging in a dispute with Areli and Baltazar over his beer consumption. Areli's father, Jose Rojas, and her brother, Antonio Rojas, told Fredy to calm down and leave. Fredy instead struck Jose and Antonio. Antonio fought back, and several people intervened. Fredy then shouted "woo-woo" or whistled to his companions, all of whom came to his aid. During the ensuing brawl that involved 15 to 20 people, appellant struck someone over the head with a bottle and fired a fatal gunshot at Antonio before running away and jumping over a fence. Two witnesses testified that they saw appellant shoot Antonio and identified him. Two others testified that they noticed the shooter's tattoos. Fredy and another companion, Mike Hoffman, subsequently confronted Jose; Hoffman pointed a gun at Jose but did not shoot.
Hoffman cooperated with law enforcement and testified for the prosecution. Hoffman testified that he was not a gang member but went to the party with Fredy and another gang member. Hoffman was armed with a nine-millimeter handgun. He saw appellant arrive at the party about 20 minutes later. During the party, a fight broke out and Hoffman heard a gunshot. He tried to leave but was knocked unconscious. When he came to, police were on the scene. They arrested Hoffman and took his gun. While in custody, Hoffman told police that he knew appellant carried a .22-caliber handgun and had seen him with it a few days before the party. Hoffman also called appellant's girlfriend and spoke to appellant on the phone; appellant told him "not to say nothing."
Law enforcement obtained a search warrant for an address associated with a phone number Hoffman had called. They searched the residence at that address and found appellant hiding in a compartment behind a refrigerator. Appellant was arrested and placed in a holding cell with Hoffman. Appellant told Hoffman he shot Antonio in "self-defense." He also told Hoffman to tell the police that another party attendee with a less extensive criminal history, Randy Casillas, was the shooter. Hoffman complied with appellant's request, but was later surreptitiously recorded telling other cellmates that he saw appellant shoot Antonio with a .22-caliber handgun. He later told law enforcement that Antonio was shot with appellant's .22-caliber handgun.
A deputy medical examiner who performed an autopsy on Antonio opined that he died as a result of a single gunshot wound to the chest. A senior criminalist testified that the bullet that killed Antonio was fired from a .22-caliber handgun and could not have been fired from a nine-millimeter handgun. A detective testified that he recovered a .22-caliber cartridge case from the crime scene.
A gang expert opined that appellant was an active member of El Hoyo Maravilla based on his self-admission and multiple gang tattoos. The expert further opined that Fredy, Hoffman, and Casillas were members of the same gang, and that the shooting was committed in association with a criminal street gang and for the benefit of that gang.
Neither Fredy nor appellant testified. The defense presented expert testimony about eyewitness memory and identification, including the adverse impact from the complexity and stress of a situation, time delay and "cross-talk" with other witnesses. Fredy's father testified that Fredy had been invited to the party. Eric Nunez, a neighbor of Areli and Baltazar, testified that Casillas told him that Casillas had killed Antonio. Nunez also testified that Casillas appeared intoxicated, he did not take anything Casillas said seriously, and he generally tried to avoid Casillas because Casillas had "lost his mind" due to drugs.
PROCEDURAL HISTORY
I. Charges and Conviction
An information charged appellant, Fredy, and Hoffman with the murder of Antonio (§ 187, subd. (a)). It further alleged personal firearm use enhancements (§ 12022.53, subds. (b), (c), (d)) and a gang enhancement (§ 186.22, subd. (b)(1)(C)) against all three defendants. The information also charged appellant with possession of a firearm by a felon (§ 29800, subd. (a)(1)). At some point, a firearm enhancement allegation of personal use by a principal was added (§ 12022.53, subd. (e)(1)).
Hoffman pled guilty to voluntary manslaughter and admitted a gang enhancement, but appellant and Fredy proceeded to a joint trial. The prosecutor argued that appellant was the direct perpetrator of the shooting and committed first degree murder by shooting Antonio willfully, deliberately, and with premeditation. She alternatively argued that appellant directly perpetrated second degree murder by acting with either express or implied malice. The prosecutor argued that Fredy was guilty of first degree murder as a direct aider and abettor. She also contended that Fredy could be guilty of second degree murder under the natural and probable consequences doctrine.
The court instructed the jury with CALJIC instructions on malice aforethought, aiding and abetting, and the natural and probable consequences doctrine. The jury was not instructed on felony murder.
The jury found appellant guilty of second degree murder and unlawful possession of a firearm and found true all the enhancement allegations. The court sentenced appellant to 15 years to life for the murder, plus 25 years to life for causing great bodily injury or death by personally and intentionally discharging a firearm (§ 12022.53, subd. (d)). It imposed and stayed sentence on the other enhancements and the felon in possession charge.
The jury acquitted Fredy of murder but found him guilty of voluntary manslaughter and found the gang and principal use enhancements true. The court subsequently granted Fredy's section 1172.6 petition for resentencing. (See People v. Rojas (Aug. 31, 2023, B325493) __ Cal.App. 5th __ .
A different panel of this court affirmed appellant's conviction and sentence on direct appeal. The opinion noted that appellant's "liability for murder was predicated on his being the shooter," and concluded that substantial evidence supported a finding that appellant was the shooter. (People v. Acosta (May 5, 2017, B267775) [nonpub. opn.]).
II. Section 1172.6 Proceedings
In March 2022, appellant filed a section 1172.6 petition for resentencing. The court appointed counsel for appellant. The prosecution filed a written opposition arguing that appellant could not make a prima facie showing of entitlement to relief because he was a direct perpetrator who "clearly acted with malice aforethought, moreover a specific intent to kill." The prosecution specifically pointed to the jury's true finding on the section 12022.53 firearm enhancement, asserting it "conclusively establish[es] that defendant was a direct perpetrator." It further argued that as a direct perpetrator, appellant could not have been convicted under either the felony murder theory or the natural and probable consequences doctrine.
After receiving and reviewing the prosecution's opposition, the trial court held a status hearing in May 2022. At the hearing, the court indicated that it recalled the trial and had reviewed the trial record. It stated that "the evidence established that Mr. Acosta was the actual shooter, and . . . some witnesses actually confirmed that. The jury found true the firearm enhancement, that he discharged a firearm causing GBI and/or death." The court said it would give appellant's counsel "an opportunity to address that" in a written reply.
Appellant subsequently filed a written reply in support of his petition. He argued that he made a prima facie case for relief because his jury was instructed on the natural and probable consequences doctrine, and that the matter should therefore proceed to an evidentiary hearing. Appellant further argued that the jury could have found him guilty of murder under the natural and probable consequences doctrine if it "believed Petitioner aided and abetted an assault" and a "co-principal" committed the murder. He also asserted that the jury's finding that he personally discharged a firearm and caused Antonio's death was not dispositive at the prima facia stage.
The court held another status hearing in July 2022. Remarking that "[t]he burden is almost, in this court's eyes, nonexistent to gain an OSC," the court stated that it would grant one "to allow, at least, counsel to be heard and make argument and so forth." The court further indicated that it did not want to engage in premature factfinding by relying on the record of conviction without providing counsel that opportunity.
Appellant and the prosecution both subsequently filed evidentiary briefs. Appellant argued that the prosecution had the burden of proving his guilt beyond a reasonable doubt, and could not rely on the facts of the prior appellate opinion to carry that burden. Emphasizing the jury's finding on the personal use firearm enhancement, the prosecution argued that the pleadings, evidence, and record of conviction conclusively established that appellant was guilty of murder as a direct perpetrator.
The court opened the August 18, 2022 evidentiary hearing by telling the parties that it was inclined to deny the petition "as a matter of law." The court then invited the parties to "add or augment the brief that you filed." Appellant's counsel stated, "The only thing I would say is that if the DA is going to present any evidence or cite to anything, I would like an opportunity to reply; but, otherwise, I will submit on my brief." The prosecution submitted on its briefing. The court then made the following remarks and ruling:
"This is an 1170.95 petition filed on March 8, 2022.
"The petitioner was found guilty of second-degree murder. The jury also found true the gang allegation and that the petitioner personally used a firearm to commit the offense pursuant to Penal Code Section 12022.53(b) and (d).
"The petitioner received a sentence of 40 years to life, . . . and the co-defendant received something less.
"From the overall evidence and the record of conviction, it establishes that the petitioner was the actual shooter. He was the actual perpetrator of the underlying murder of the victim, Antonio Rojas. The jury also found true the special allegation that the petitioner personally discharged a firearm, causing death.
"And I'm not engaging in fact-finding because as a matter of law, based on what I've already stated, he is not eligible for relief under P.C. 1170.95.
"I will just augment the record by saying again, this court -just for the reviewing court, making it clear to them - is not engaging in fact-finding.
"So based on what I've stated, I would leave it as such, and that will be that. "But I remember this case.
"The facts involved the petitioner and several friends attending a backyard baptismal party wherein the co-defendant, Fredy Rojas, got involved in a physical altercation with the victim, Antonio Reyes [sic].
"At one point during the physical altercation, Fredy Rojas signaled to his friends for assistance.
"During the melee, some witnesses observed the petitioner shoot the victim, resulting in his death. I'm talking about witnesses like Jose Baltazar and Fidel Rojas.
"The petitioner himself admitted to the shooting while in a holding cell with Mike Hoffman, who was a friend at the party.
"Mr. Hoffman admitted in a phone call that he saw the petitioner shoot the victim with a .22 caliber handgun. After agreeing to cooperate with the prosecution, Mr. Hoffman acknowledged that he had lied when he said Casillas - somebody named Casillas was the shooter.
"But the court - again, I'm not engaging in fact-finding. I remember this case. As he was the actual shooter, coupled with what the jury found as true, that he personally discharged a weapon causing death, I'm going to find as a matter of law that he is ineligible for 1170.95 resentencing relief."
Appellant timely appealed.
DISCUSSION
I. Legal Framework
Effective January 1, 2019, the Legislature changed the substantive definition of murder "to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Sen. Bill No. 1437 (2017-2018 Reg. Sess.), § 1, subd. (f) (SB 1437).) To this end, the law specifically provided that a "person's culpability for murder must be premised upon that person's own actions and subjective mens rea," and a conviction for murder "requires that a person act with malice aforethought." (Id., subd. (g).)
As relevant here, SB 1437 "eliminated the exception that had allowed a second degree murder conviction under the natural and probable consequences doctrine." (People v. Clements (2022) 75 Cal.App.5th 276, 290 (Clements).) The natural and probable consequences doctrine was a doctrine of vicarious liability that "made 'a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a "natural and probable consequence" of the crime originally aided and abetted.' [Citation.]" (Ibid., quoting People v. Prettyman (1996) 14 Cal.4th 248, 254, 262-263.) Under the doctrine, "the mens rea of the aider and abettor with respect to that [nontarget] offense [was] irrelevant, and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the nontarget crime." (People v. Canizalez (2011) 197 Cal.App.4th 832, 852.) Now, under section 188, subdivision (a)(3) as amended by SB 1437, "[m]alice shall not be imputed to a person based solely on his or her participation in a crime"; to be guilty of murder, he or she must "act with malice aforethought." (§ 188, subd. (a)(3).)
SB 1437 added what is now section 1172.6 to the Penal Code, creating "a procedure for offenders previously convicted of murder under a natural and probable consequences theory to obtain the benefits of these changes retrospectively." (Clements, supra, 75 Cal.App.5th at p. 290.) A person may file a petition asserting that he or she was subject to a complaint, information, or indictment that allowed the prosecution to proceed under the natural and probable consequences doctrine or other theory of imputed malice; he or she was convicted of murder, attempted murder, or manslaughter; and he or she could no longer be convicted in light of SB 1437. (§ 1172.6, subd. (a).) At the prima facie stage of review, the trial court must determine whether the petitioner would be entitled to relief if his or her allegations were proven. If so, the court must issue an order to show cause. (People v. Lewis (2021) 11 Cal.5th 952, 971.) The trial court is not permitted to engage in factfinding at this stage; as the trial court here correctly observed, the prima facie bar was set very low. (Id. at pp. 972, 974.)
Once a prima facie showing has been made, the court must hold a hearing to determine whether to vacate the petitioner's conviction, recall his or her sentence, and resentence him or her "on any remaining counts in the same manner as if the petitioner had not been previously sentenced." (§ 1172.6, subd. (d)(1).) At the hearing, the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder under current law. (§ 1172.6, subd. (d)(3).) The court "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history recited in any prior appellate opinion." (Ibid.) Additionally, the prosecutor and petitioner "may also offer new or additional evidence." (Ibid.) The court "reviews the record, hears the testimony, and decides as a factual matter whether the petitioner committed murder under the current law." (Clements, supra, 75 Cal.App.5th at p. 297.) "If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (§ 1172.6, subd. (d)(3).)
In reviewing the denial of a section 1172.6 petition after an evidentiary hearing, we review the trial court's factual findings for substantial evidence and the application of those facts to the statute de novo. (People v. Williams (2020) 57 Cal.App.5th 652, 663.) Under the substantial evidence standard, we examine the record in the light most favorable to the judgment to determine whether it contains substantial evidence, contradicted or uncontradicted, from which a rational trier of fact could find the petitioner guilty beyond a reasonable doubt. (Clements, supra, 75 Cal.App.5th at p. 298.) Ultimately, we review the correctness of the court's decision, not its rationale. (See People v. Zapien (1993) 4 Cal.4th 929, 976; People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12; see also US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 909 ["We do not review the rationale for the court's decision. Rather, if there is substantial evidence to support the result under the correct standard, we will affirm."].)
II. Analysis
Appellant contends the court erred by failing to fulfill its statutory role as factfinder at the evidentiary hearing, and that the "manifest failure . . . clearly violates" section 1172.6, subdivision (d)(3), "as explicated in Clements." He points to the court's repeated statements that it was not engaging in factfinding, and asserts that the court "did not review any trial evidence contained in any trial transcript of the 'cold record,' before making its erroneous 'matter of law' determination."
Despite the trial court's statements to the contrary, the transcript of the evidentiary hearing indicates that the court considered the record of conviction and found that appellant was the actual shooter. The court cited evidence from appellant's trial, including the testimony of witnesses it identified by name, and concluded from that evidence that appellant was the actual shooter. The record of appellant's trial, of which we have taken judicial notice without objection from appellant, supports the court's findings. Multiple witnesses indeed testified that they saw appellant shoot Antonio, and forensic evidence showed that the single shot fired could not have come from Hoffman's gun. The medical examiner also opined, based on the soot and stippling on Antonio's body, that the barrel of the gun was "no more than 2 inches away" from his chest when it was fired. It is "obvious the intentional firing of a gun at the victim at close range is an act dangerous to human life and presents a high probability of death"-that is, malice. (People v. Woods (1991) 226 Cal.App.3d 1037, 1048.)
The court also cited the jury's finding that appellant personally and intentionally discharged a firearm and caused great bodily injury or death under section 12022.53, subdivision (d). Appellant contends, and we agree, that this finding alone does not necessarily render him ineligible for relief. Section 12022.53 is "a general intent enhancement, and does not require the prosecution to prove that the defendant harbored a particular mental state as to the victim's injury or death." (People v. Offley (2020) 48 Cal.App.5th 588, 598 (Offley).) It accordingly "does not establish that the defendant acted with [the] malice aforethought" now required to sustain a murder conviction. (Ibid.; see also In re Ferrell (2023) 14 Cal.5th 593, 604.) However Offley concerned review of a petition at the prima facie stage. It also recognized that, ultimately, "the trial court may look beyond the abstract of judgment and consider the entire record of conviction," and "[i]n many instances, additional information from the record will establish that a defendant's conviction was not based on the natural and probable consequences doctrine, and that the jury must have convicted the defendant on the basis of his own malice aforethought." (Offley, supra, 48 Cal.App.5th at pp. 598-599.)
We note that appellant distinguishes a different case cited by respondent as "procedurally inapposite" because it arose at the prima facie stage. He makes no such argument regarding Offley.
That is what happened here. The trial court looked beyond the jury finding, and substantial evidence supported its finding that appellant was the sole shooter and acted with malice. Evidence at trial showed that a single shot was fired, and the prosecution exclusively argued that appellant was the one who fired it. The prosecution did not advance an aiding and abetting theory as to appellant; instead, it argued that Fredy, not appellant, was a direct aider and abettor or was liable under the natural and probable consequences doctrine. Moreover, the jury was not instructed on involuntary manslaughter, which is "a killing without malice." (In re Ferrell, supra, 14 Cal.5th at p. 607; see People v. Harden (2022) 81 Cal.App.5th 45, 53 [considering "instructions the jury was not given"].)) Such an instruction would have been required had the evidence supported a conclusion that appellant shot without the intention of killing or injuring anyone. (In re Ferrell, supra, 14 Cal.5th at p. 607.)
Appellant also contends the prosecution failed to carry its burden of proof because it did not provide the court with specific citations to the trial record. The only authority he cites in support of this contention, Clements, supra, 75 Cal.App.5th 276, is silent on this point, and "[i]t is axiomatic that a decision does not stand for a proposition not considered by the court." (People v. Dickey (2005) 35 Cal.4th 884, 901.) Clements is nevertheless analogous, as the parties there also "agreed to limit the evidence to the record of conviction" (Clements, supra, 75 Cal.App.5th at p. 282), which is permissible under section 1172.6, subdivision (d)(3). Additionally, there, as here, appellant "has not identified any portion of our prior opinion that the trial judge relied upon, so [he has] provided no basis for overturning the trial judge's ruling on the ground that it reached its ultimate conclusion that [he] was not entitled to relief based on information in our prior opinion rather than information in the trial transcripts the parties submitted for the trial court's decisions." (Id. at p. 293.) And there, as here, "we have reviewed the trial transcripts and conclude they support the factual history set out in our prior opinion, and our analysis depends on the trial transcript rather than the partial summary contained in our prior opinion." (Ibid.)
He further contends that this error entitles him to automatic resentencing, because section 1172.6, subdivision (d)(3) provides that a petitioner's conviction "shall be vacated" and he or she "shall be resentenced" if the prosecution fails to carry its burden, and this means that "[t]he People get one statutorily-based chance only to sustain their ultimate burden of proof." This argument is frivolous. (People v. Vance (2023) 94 CalApp.5th 706, 714.)
DISPOSITION
The order denying appellant's section 1172.6 petition is affirmed.
We concur: MORI, J., ZUKIN, J.