Opinion
B331686
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. RAMON ARIAS, Defendant and Appellant.
James R. Bostwick, Jr., 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, Senior Assistant Attorney General, and Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA136781-01 Hector E. Gutierrez, Judge. Affirmed.
James R. Bostwick, Jr., 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, Senior Assistant Attorney General, and Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
WILEY, J.
Ramon Arias appeals the denial of his Penal Code Section 1172.6 petition for resentencing. Arias's record of conviction conclusively established that he acted alone in his crimes and was the actual shooter. He is not eligible for the relief he seeks. Statutory citations are to the Penal Code.
In October 2015, an information charged Arias with the following crimes:
Count One: assault with a semiautomatic firearm, in violation of section 245, subdivision (b), upon Christopher Arriaga;
Count Two: attempted willful, deliberate, and premeditated murder, in violation of section 664 and section 187, subdivision (a), upon Raul Lorenzano;
Count Three: attempted willful, deliberate, and premeditated murder, in violation of section 664 and section 187, subdivision (a), upon Felix Avalos;
Count Four: shooting at an occupied motor vehicle, in violation of section 246;
Count Five: assault with a semiautomatic firearm, in violation of section 245(b), upon Raul Lorenzano;
Count Six: assault with a semiautomatic firearm, in violation of section 245, subdivision (b), upon Felix Avalos.
Two months later, Arias pleaded no contest to counts Two (attempted murder of Raul Lorenzano) and Six (gun assault on Felix Avalos). The prosecutor agreed to dismiss the remaining four counts.
In connection with Count Two, Arias admitted his 2011 conviction of attempted robbery, and that this conviction was a strike under the "Three Strikes Law" (codified in §§ 1170.12, subd. (b) and 667, subds. (b)-(j)). Arias also admitted he committed this attempted murder charge for the benefit of, at the direction of, or in association with a criminal street gang, under section 186.22, subdivision (b)(1)(a).
As for count Six, Arias admitted to personally using a handgun (see § 12022.53, subd. (b)).
When the prosecutor asked whether he would "stipulate to a legal, factual basis for the plea based on all the discovery and preliminary hearing transcript," Arias, through counsel, responded "yes."
The court sentenced Arias to 36 years in prison.
The Legislature later amended the Penal Code to make resentencing relief available to defendants with murder convictions who never had the intent to kill. It enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which "amend[s] the felony murder rule and the natural and probable consequences doctrine, as it relates to 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." (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 775 (2021-2022 Reg. Sess., effective January 1, 2022) (SB 775), clarified that "persons who were convicted of attempted murder . . . under . . . the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theor[y]." (Stats. 2021, ch. 551, § 1, subd. (a).)
Six months after the effective date of SB 775, Arias filed a section 1170.95 (now section 1172.6) petition for resentencing. The petition concerns only Arias's attempted murder plea. He checked all the boxes on the pre-printed form, declaring that (1) an information was filed against him that allowed the prosecution to proceed under a theory of attempted murder under the natural and probable consequences doctrine; (2) he accepted a plea offer in lieu of a trial at which he could have been convicted of attempted murder; and (3) he could not presently be convicted of attempted murder because of changes made to sections 188 and 189.
At Arias's request, the court appointed an alternate public defender to represent Arias in his resentencing petition. In these proceedings, Arias argued his no contest plea was not equivalent to admitting that he acted with intent to kill. Relatedly, he argued the incorporation of his preliminary hearing transcript "as a basis" for his no contest plea did not equate to an admission of intent to kill. Arias urged the trial court to order a full evidentiary hearing on the basis that "[t]he record does not restrict what legal theory underlies the factual basis; and it, therefore, includes natural and probable consequences."
The prosecutor opposed this request because Arias was the sole and actual perpetrator of the attempted murder of the victim. At the prima facie hearing, the court denied Arias's petition. In reaching this conclusion, the court reviewed the record in this case (the information, the plea transcript, and the preliminary hearing transcript), which showed that Arias was the only perpetrator charged with attempted murder. The court considered whether Arias could have been an accomplice to someone else, but rejected this notion because "[Arias] is the only individual that was identified as the shooter in this case."
On appeal, Arias argues the trial court engaged in impermissible factfinding by "making a credibility determination that the testimony of the victim witness at the preliminary hearing was truthful and accurate." Under People v. Mares (2024) 99 Cal.App.5th 1158, review granted May 1, 2024, S284232 (Mares), this argument fails. Nothing in the record suggested anyone else assisted or participated with Arias in any way. Arias acted alone.
"The changes to the law applied to accomplices." (Mares, supra, 99 Cal.App.5th at p. 1166, rev. grant.) In this case there was no accomplice.
"Here, we need not credit the truth of any fact in the preliminary hearing transcript. What matters is that the record supports no theory other than those where [Arias] was the actual [attempted] killer, acting with no accomplice." (Mares, supra, 99 Cal.App.5th at p. 1167, rev. grant.)
This case is different from our recent decision in People v. Estrada (2024) 101 Cal.App.5th 328, where we reversed the denial of a section 1172.6 petition. In that case the evidence potentially suggested multiple perpetrators. (Id. at pp. 333, 340.) There is nothing like that in this case.
We acknowledge the appellate split on this issue. (See, e.g., People v. Williams (2024) 103 Cal.App.5th 375.)
DISPOSITION
We affirm the order.
I concur: GRIMES, Acting P. J.
VIRAMONTES, J., Dissenting.
I write separately because I disagree with the majority's view that the trial court properly relied on the preliminary hearing transcript when it denied petitioner Ramon Arias's resentencing petition under Penal Code section 1172.6. Instead, I would adopt the analysis of People v. Williams (2024) 103 Cal.App.5th 375, which held that a preliminary hearing transcript cannot conclusively establish a petitioner was convicted under a valid theory of murder or attempted murder, unless the petitioner admits specific facts in that transcript establishing his ineligibility for resentencing. (Id. at pp. 397403.) Here, Arias did not admit the truth of any facts contained in the preliminary transcript. Nor did he admit that he acted with premeditation and deliberation or the intent to kill when he pled no contest to attempted murder. Because nothing in the record of conviction establishes that Arias is ineligible for resentencing as a matter of law (see People v. Estrada (2024) 101 Cal.App.5th 328, 337-339), I would reverse the order denying his resentencing petition and remand the matter for an evidentiary hearing under Penal Code section 1172.6, subdivision (d).