Opinion
B322202
07-17-2023
THE PEOPLE, Plaintiff and Respondent, v. ABEL ARGUMANIZ, Defendant and Appellant.
Law Office of G. Martin Velez and G. Martin Velez for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. BA214224 Charlaine F. Olmedo, Judge.
Law Office of G. Martin Velez and G. Martin Velez for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
ESCALANTE, J. [*]
INTRODUCTION
Abel Argumaniz appeals from the superior court's order denying his petition for resentencing under former section 1170.95 (now section 1172.6) of the Penal Code. He argues the court erred in ruling he did not make a prima facie showing he was entitled to relief under the statute. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Conviction
On April 4, 2001, in connection with the shooting of George Albert Cruz, the People charged Argumaniz with the following counts: the attempted willful, deliberate, premeditated murder of Cruz in violation of sections 664 and 187; assault with a semiautomatic firearm of Cruz in violation of section 245, subdivision (b); shooting at an occupied motor vehicle in violation of section 246; and assault with a semiautomatic firearm of Kimberly Alvarez in violation of section 245, subdivision (b).
The People alleged the attempted murder was committed willfully, deliberately, and with premeditation within the meaning of section 664, subdivision (a). Further on that count, the People alleged Argumaniz personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and personally used a firearm (§ 12022.53, subd. (b)). The People also alleged Argumaniz, with the intent to inflict such injury, personally inflicted great bodily injury upon Cruz, not as an accomplice (§§ 1203.075 and 12022.7, subd. (a)). The People also alleged "in the commission and attempted commission of the above offense [attempted murder] a principal in said offense was armed with a firearm." (§ 122022, subd. (a)(1).)
Codefendant Richard Hernandez was also charged with attempted murder and the other offenses, but the People did not allege Hernandez personally and intentionally used or discharged a firearm or personally and intentionally inflicted great bodily injury upon Cruz.
Argumaniz and Hernandez were tried together. The jury found Hernandez not guilty on all charges. (People v. Argumaniz (Jan. 9, 2003, B154470) [nonpub. opn.].) The jury convicted Argumaniz on all charges and found all the enhancements true. We affirmed the convictions in an unpublished decision in 2003. (People v. Argumaniz, supra, B154470.)
On February 14, 2022, Argumaniz filed a petition for resentencing pursuant to former section 1170.95 (now section 1172.6), checking boxes on a form petition stating he was eligible for relief and asking the court to appoint counsel to represent him. On March 1, 2022, the superior court appointed counsel. On March 10, 2022, the People filed a response to the petition, arguing Argumaniz was not entitled to relief as a matter of law because the jury was not instructed on either the natural and probable consequences doctrine or the felony murder rule and because the jury found true that Argumaniz personally and intentionally discharged a firearm that injured Cruz. The jury instructions were submitted with the opposition. On June 7, 2022, Argumaniz filed a reply to the opposition arguing that he was entitled to an evidentiary hearing because the record did not show that he was the sole direct perpetrator.
The superior court held a hearing to determine whether Argumaniz had made a prima facie showing he was entitled to relief under section 1172.6. At the hearing, the court stated: "In this particular case, I do agree with the People that, as a matter of law, he is not eligible for the relief requested based upon the facts. The jury was not instructed on any theory of criminal liability that falls within [section] 1170.95. They did find him guilty of first degree or willful, deliberate, premeditated attempted murder which would necessitate expressed malice on the part of the defendant. In addition, with the 12022.53(d) they also found true that he personally used the firearm making him the actual shooter on both bases. There are two different bases. On both bases, he is ineligible as a matter of law."
A minute order was issued, stating: "The court makes findings (not eligible-jury finding of attempted murder was willfully, deliberately, and with premeditation, and personal use of firearm finding) and denies the petition."
B. Relevant Jury Instructions
Using CALJIC No. 8.66, the trial court instructed the jury on the elements of attempted murder in relevant part as follows:
"Defendant is accused in Count 01 of having committed the crime of attempted murder, in violation of Sections 664 and 187 of the Penal Code. [¶] Every person who attempts to murder another human being is guilty of a violation of Penal Code Sections 664 and 187.
"Murder is the unlawful killing of a human being with malice aforethought. [¶] In order to prove attempted murder, each of the following elements must be proved:
"1. A direct but ineffectual act was done by one person towards killing another human being; and
"2. The person committing the act harbored express malice aforethought namely, a specific intent to kill unlawfully another human being."
The trial court also defined the terms "willful, deliberate, and premeditated" using former CALJIC No. 8.67. The instruction provided in relevant part: "It is also alleged in Count 01 that the crime attempted was willful, deliberate, and premeditated murder. If you find the defendant guilty of attempted murder you must determine whether this allegation is true or not true. [¶] 'Willful' means intentional. 'Deliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. 'Premeditated' means considered beforehand. [¶] . . . [¶] To constitute willful, deliberate, and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being."
The trial court also gave several instructions on aiding and abetting. Using former CALJIC No. 3.00, the court instructed the jury that principals of a crime are "equally guilty" and include (1) those who "directly and actively commit or attempt to commit the act constituting the crime" or (2) those who "aid and abet the commission or attempted commission of the crime." The court also gave a slightly modified version of CALJIC No. 3.01: "A person aids and abets the commission or attempted commission of a crime when he, [¶] (1) With knowledge of the unlawful purpose of the perpetrator, [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime."
The jury was also instructed that it had to find the requisite mental state in order to convict (CALJIC No. 3.31.5): "In the crimes charged in Counts 01, 02, 03, and 04, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed. [¶] The mental states required are included in the definitions of the crimes set forth elsewhere in these instructions."
The trial court also instructed on the enhancements related to use of a firearm. Among those instructions was CALJIC No. 17.19.5 on the "intentional and personal discharge of firearm/great bodily injury": "It is alleged in Count 01 that the defendant Abel Argumaniz intentionally and personally discharged a firearm and caused great bodily injury to a person other than an accomplice during the commission of the crime charged. [¶] If you find the defendant Abel Argumaniz guilty of the crime thus charged, you must determine whether the defendant Abel Argumaniz intentionally and personally discharged a firearm and caused great bodily injury to a person other than an accomplice in the commission of that felony. [¶] . . . [¶] The term 'intentionally and personally discharged a firearm,' as used in this instruction, means that the defendant himself must have intentionally discharged it." (Capital letters omitted.) Instructions were also given on personal use of a firearm and intentional and personal discharge of a firearm.
The trial court also gave an instruction on "infliction of great bodily harm" (a slightly modified version of former CALJIC No. 17.20), which provided in part as follows: "If you find the defendant Abel Argumaniz guilty of the crimes charged in Counts 01 and 02, you must determine whether the defendant Abel Argumaniz personally inflicted great bodily injury on George Albert Cruz in the commission or attempted commission of the crimes charged in Counts 01 and 02."
Argumaniz timely appealed.
DISCUSSION
Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly narrowing the felonymurder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189, subdivision (e). The latter provision requires the People to prove specific facts relating to the defendant's culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); the defendant, though not the actual killer, with the intent to kill assisted in the commission of the murder (§ 189, subd. (e)(2)); or the defendant was a major participant in a felony listed in section 189, subdivision (a), and acted with reckless indifference to human life, "as described in subdivision (d) of Section 190.2," the felony-murder special-circumstance provision. (§ 189, subd. (e)(3); see Strong, at p. 708; Gentile, at p. 842.)
Section 1172.6 provides a procedure for vacating "a final murder, attempted murder, or manslaughter conviction that does not comply with" these changes in the law. (People v. Duran (2022) 84 Cal.App.5th 920, 927; see Strong, supra, 13 Cal.5th at p. 708; Lewis, supra, 11 Cal.5th at p. 957; Gentile, supra, 10 Cal.5th at p. 843.) It authorizes a person convicted of one of these crimes to petition the superior court to vacate the conviction and be resentenced on any remaining counts if all 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) [t]he 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[; and] (3) [t]he petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
If a section 1172.6 petition contains all the required information, the superior court must appoint counsel to represent the petitioner if requested. (Lewis, supra, 11 Cal.5th at pp. 962963; see § 1172.6, subd. (b)(1)(A), (3).) The prosecutor must then file a response to the petition, the petitioner may file a reply, and the court must hold a hearing to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (§ 1172.6, subd. (c).)
In deciding whether a petitioner has made a prima facie showing for relief under section 1172.6, "'"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."'" (Lewis, supra, 11 Cal.5th at p. 971.)
To determine whether the petitioner has made a prima facie showing, the superior court may consider the record of conviction, which will "necessarily inform the [superior] court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971; see People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) The record of conviction includes closing arguments, jury instructions, verdict forms, and, to the extent relevant to procedural history, prior appellate opinions in the case. (Lewis, at pp. 971-972; People v. Jenkins (2021) 70 Cal.App.5th 924, 935.) "In reviewing any part of the record of conviction at this preliminary juncture, a [superior] court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, at p. 972; see People v. Eynon (2021) 68 Cal.App.5th 967, 975.)
"Nevertheless, the court may appropriately deny a petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law. '"[I]f 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,'"'" thereby deeming the petitioner ineligible." (People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden); see Lewis, supra, 11 Cal.5th at p. 971.)
Where the petitioner makes the requisite prima facie showing he or she is entitled to relief under section 1172.6, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder or attempted murder conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c), (d)(1).) At that hearing the court may consider evidence "previously admitted at any prior hearing or trial that is admissible under current law," including witness testimony. (§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may also offer new or additional evidence. (Ibid.; see Gentile, supra, 10 Cal.5th at pp. 853-854.)
On appeal from an order denying a petition under section 1172.6 on the ground the petitioner failed to make a prima facie showing he or she was entitled to relief, we review de novo whether the petitioner is ineligible for relief as a matter of law. (People v. Lopez (2022) 78 Cal.App.5th 1, 14; People v. Ervin (2021) 72 Cal.App.5th 90, 101.)
B. Argumaniz Is Ineligible for Relief Under Section 1172.6
As noted, section 1172.6, subdivision (a), provides: "A person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts." (Italics added.)
According to the plain language of section 1172.6, a person convicted of attempted murder is eligible for relief only if that conviction was based on the natural and probable consequences doctrine. (Coley, supra, 77 Cal.App.5th at p. 548 ["[s]ection [1172.6] applies by its terms only to attempted murders based on the natural and probable consequences doctrine"].) Thus, where the instructions did not permit the jury to convict appellant of "attempted murder under the natural and probable consequences doctrine" (§ 1172.6, subd. (a)), appellant is ineligible for relief under section 1172.6 as a matter of law. (Coley, at p. 548 [defendant convicted of attempted murder not entitled to § 1172.6 relief because the jury was not instructed on the natural and probable consequences doctrine]; but see People v. Basler (2022) 80 Cal.App.5th 46, 55 ["Effective January 1, 2022, the Legislature clarified that defendants convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief. (Sen. Bill No. 775 (20212022 Reg Sess.); Stats. 2021, ch. 551, § 1, subd. (a).)"].)
Here, it does not matter whether the statute limits relief only to those convicted of attempted murder under the natural and probable consequences doctrine or whether the statute also allows relief for those convicted of attempted murder under some other theory where malice is imputed. The instructions in this case did not allow the jury to convict under any such theory.
Rather, the attempted murder instruction required the jury to find Argumaniz "harbored express malice aforethought namely, a specific intent to kill unlawfully another human being." Further, the jury found as true the fact that Argumaniz acted willfully, deliberately, and with premeditation. To reach that conclusion, the jury had to find, among other things, that Argumaniz "decide[d] to kill."
The jury was instructed on aiding and abetting. "Direct aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775." (Coley, supra, 77 Cal.App.5th at p. 548.) To find a defendant guilty of attempted murder on an aiding and abetting theory under that instruction, the jury would have to find the defendant knew another person intended to kill the victim, that the defendant intended to aid and abet the other person in committing the killing, and that the defendant did aid and abet the other person in taking the actions constituting the attempted murder. (People v. Johnson (2016) 62 Cal.4th 600, 640-641 [analyzing conviction for first degree murder on an aiding and abetting theory; interpreting the language of CALCRIM No. 401, which was substantially similar to the language in the aiding and abetting instruction here].) The jury was also told it had to find the defendant had the requisite mental state as set forth in the "definitions of the crimes set forth elsewhere in these instructions." "Unless this mental state exists the crime to which it relates is not committed." (CALJIC No. 3.31.5.) The instructions made clear that in order to convict for aiding and abetting attempted murder, the jury would have to find the defendant harbored the specific intent to kill another human being. (See People v. McCoy (2001) 25 Cal.4th 1111, 1118 [to be convicted of attempted murder under a direct aiding and abetting theory, defendant must have had the specific intent to kill].)
Thus, regardless whether Argumaniz was convicted as the actual shooter or as an aider and abettor, the jury had to find that Argumaniz "harbored express malice aforethought, namely, a specific intent to kill" in order to convict him. Argumaniz is thus ineligible for resentencing as a matter of law.
Argumaniz asks us to remand with instructions for the superior court to issue a written statement of the reasons for declining to issue an order to show cause. Argumaniz relies on section 1172.6, subdivision (c), which states in part: "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." The court explained the reasons for the denial from the bench, and those reasons were summarized in the minutes. Even if a written statement were required, any such error would necessarily be harmless because Argumaniz is categorically ineligible for relief under section 1172.6. (See Lewis, supra, 11 Cal.5th at pp. 957958 [harmless error standard under People v. Watson (1956) 46 Cal.2d 818 applies to procedural errors in ruling on a section 1172.6].)
DISPOSITION
The order denying Argumaniz's petition is affirmed.
We concur: PERLUSS, P. J., SEGAL, J.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.