Opinion
G063025
10-25-2024
THE PEOPLE, Plaintiff and Respondent, v. TONY ALEXANDER AYALA, Defendant and Appellant.
Tony Alexander Ayala, in pro. per.; Joseph Doyle, 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NOT TO BE PUBLISHED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. 15NF3441 Kimberly Menninger, Judge. .
Tony Alexander Ayala, in pro. per.; Joseph Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
GOODING, J.
Defendant Tony Alexander Ayala petitioned the trial court pursuant to Penal Code section 1172.6 for resentencing in connection with his 2018 guilty plea and resulting convictions for the attempted murders of four individuals stemming from stabbings that occurred at a residential gathering. The court denied Ayala's petition at the prima facie stage.
All further statutory references are to the Penal Code.
Appointed counsel for Ayala filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), requesting this court conduct an independent review of the entire record. Ayala also filed a supplemental brief on his own behalf.
After examining the entire record, we find no reasonably arguable issue. (Delgadillo, supra, 14 Cal.5th at p. 232.) The record of conviction conclusively refutes Ayala's allegation in his petition that he could not presently be convicted of attempted murder because of changes to sections 188 or 189, making him ineligible for relief. Ayala was charged as a direct perpetrator of the stabbings, not under a theory of natural and probable consequences, and Ayala admitted in the factual basis of his plea agreement that he personally attempted to murder the four victims with the specific intent to kill. We affirm the postjudgment order.
PROCEDURAL HISTORY
I.
CHARGES AGAINST AYALA
In July 2017, the People filed an information charging Ayala and his codefendants with one count of conspiracy to commit murder (§ 182, subd. (a)(1) [count 1]), eight counts of the attempted murders of W.L., C.P., R.P., A.B., B.R., L.B., J.A., and E.P. (§§ 187, subd. (a), 664, subd. (a) [counts 2-9]), eight counts of assault with a deadly weapon (a knife) upon the same eight individuals (§ 245, subd. (a)(1) [counts 10-17]), and one count of street terrorism (§ 186.22, subd. (a) [count 18]). The information further alleged that the attempted murders in counts 2 through 9 were committed willfully, deliberately, and with premeditation. (§ 664, subd. (a).) It also alleged sentencing enhancements for criminal street gang activity as to counts 1 through 17. (§ 186.22, subd. (b)(1).)
Section 186.22(a): "A person who actively participates in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail...."
In support of count 1, the information alleged the following: On the evening in question, J.R., one of Ayala's codefendants, attempted to attend a party but was turned away. J.R. left the location of the party but threatened to return with members of a criminal street gang. J.R. then made good on her threat: she drove back to the party with three male gang members, including Ayala, who were armed with knives. After announcing their gang affiliation, Ayala and the other gang members proceeded to indiscriminately stab multiple victims with the intent to kill.
II.
GUILTY PLEA AND SENTENCING
In December 2018, Ayala entered a guilty plea to four counts of attempted murder as charged in counts 2, 5, 6, and 8; four counts of assault with a deadly weapon as charged in counts 11, 12, 15, and 17; and one count of street terrorism. As part of the negotiated plea deal, the prosecution agreed to strike the street gang allegation for the purposes of sentencing as to counts 2, 5, 6, 8, 11, 12, 15, and 17. All other counts and allegations were dismissed.
As the factual basis for his plea, Ayala admitted the following: "In Orange County, California, on or about 12/27/15 I did willfully, unlawfully, knowingly and personally, with the specific intent to kill, attempt to murder and kill the following people: [W.L., A.B., B.R., and J.A.] and I also did knowingly, unlawfully and personally commit an assault with a deadly weapon and instrument, to wit: a knife, upon the person of [C.P.], R.P., L.B., and E.P., all separate victims and I committed the crimes above described for the benefit of, at the direction of and in association with Anaheim Travelers City criminal street gang with the specific intent to promote further and assist in criminal conduct by members of that gang and I did actively participate as a member in Anaheim Travelers City criminal street gang with knowledge its members engage in and have engaged in a pattern of criminal gang activity and I did willfully and unlawfully promote, further and assist in felony criminal conduct by members of that gang."
In accepting the plea, the trial court asked Ayala if he had read the factual basis and if the factual basis was true. Ayala said that he had and that it was.
On December 10, 2018, the trial court sentenced Ayala pursuant to his stipulated plea agreement to a total of 17 years in state prison, including nine years for count 2, two years and four months for count 5, two years and four months for count 6, two years and four months for count 8, two years for count 11, two years for count 12, two years for count 15, and one year for count 17. The sentences on counts 5, 6, 8 and 17 were to run consecutive to count 2, and the sentences on counts 11, 12, and 15 were to run concurrent to count 2.
III.
PETITION FOR RESENTENCING AT PRIMA FACIE STAGE
In May 2022 Ayala filed a petition for resentencing pursuant to section 1170.95 and requested appointment of counsel. Ayala's petition alleged the following: "1. A[n] . . . information . . . was filed against me that allowed the prosecution to proceed under a theory of . . . attempted murder under the natural and probable consequences doctrine." "2.... I accepted a plea offer in lieu of a trial at which I could have been convicted of . . . attempted murder." "3. I could not presently be convicted of . . . attempted murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019."
Ayala had previously filed a petition for resentencing under section 1170.95 in September 2020, which the trial court denied. At that time, section 1170.95 did not provide relief from an attempted murder conviction. Section 1170.95 was amended effective January 1, 2022, to provide relief to those charged with attempted murder or manslaughter. (Stats. 2021, ch. 551, § 2.) Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to the statute as section 1172.6 throughout the opinion.
The trial court appointed counsel and set a hearing on the prima facie finding. Following briefing and a hearing on the matter, the court issued a written order denying the petition, finding the record of conviction demonstrated Ayala was ineligible for relief as a matter of law pursuant to section 1172.6. As part of the record of conviction, the court considered all charging documents, Ayala's guilty plea, the abstract of judgment, Ayala's petitions for resentencing, the parties' briefing, and the trial court's minutes. In denying the petition, the court determined, based on the record of conviction, Ayala was not charged with or convicted on a theory of natural and probable consequences and "he is still liable for attempted murder under one of the currently acceptable theories." Ayala timely appealed.
DISCUSSION
I.
APPLICABLE LEGAL AUTHORITY
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.), amended sections 188 and 189, the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, "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(f).) The legislation also enacted former section 1170.95, which provides a procedure to petition for retroactive relief for those who could not now be convicted under sections 188 and 189 as amended. (See People v. Lewis (2021) 11 Cal.5th 952, 957.) Retroactive relief "is unavailable if the defendant was either the actual killer, acted with the intent to kill, or 'was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.' (Pen. Code, § 189, subd. (e)(3); see § 1172.6, subd. (a).)" (People v. Strong (2022) 13 Cal.5th 698, 710.)
The allegations of a defendant's petition must be accepted as true; however, if the record "'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner.'" (People v. Lewis, supra, 11 Cal.5th at p. 971.) These standards "allow[ ] the court to distinguish petitions with potential merit from those that are clearly meritless." (Ibid.)
When the petitioner's conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts "the defendant admitted as the factual basis for a guilty plea." (People v. Gallardo (2017) 4 Cal.5th 120, 136; see § 1192.5, subd. (c) [court approving guilty plea must "cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea"].) A guilty plea is "more than a confession which admits that the accused did various acts; it is itself a conviction." (People v. Chadd (1981) 28 Cal.3d 739, 748.)
II.
THE RECORD OF CONVICTION REFUTES THE ALLEGATIONS IN AYALA'S PETITION AND SUPPLEMENTAL BRIEF
Here, the record of conviction conclusively refutes Ayala's allegation in the petition he filed under section 1172.6 that he "could not presently be convicted of . . . attempted murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019."
Specifically, Ayala's guilty plea shows he was a direct perpetrator of the stabbings. Ayala admitted that he "did willfully, unlawfully, knowingly and personally, with the specific intent to kill, attempt to murder and kill the following people: [W.L, A.B., B.R. and J.A.]." (Italics added.) Neither the amended information nor the plea form contains any reference to the natural and probable consequences doctrine or any other theory of imputed or vicarious liability.
In his supplemental brief, Ayala argues he did not admit to personally using a weapon in connection with the attempted murders, only that he used a knife to commit an assault on them. The lack of any reference in his plea agreement to Ayala's use of a weapon to commit the attempted murders is irrelevant to the determination of his petition under section 1172.6. Unlike a charge of assault with a deadly weapon, use of a weapon is not a required element of the crime of attempted murder. (See People v. Mejia (2012) 211 Cal.App.4th 586, 605 ["Attempted murder requires (1) a specific intent to kill and (2) a direct but ineffectual act toward accomplishing the intended killing."].) In addition, whether the plea references his use of a weapon or not, Ayala admitted personally attempting to kill four individuals, i.e., that he was a direct perpetrator.
Next, Ayala contends that because there were multiple perpetrators involved in the stabbings (the information alleged Ayala and his two codefendants "proceeded to stab numerous members of the party indiscriminately") and multiple victims, he could not be found guilty under current law of all four attempted murders. In other words, Ayala argues that because of the nature of the stabbings, the prosecution would have to proceed on a theory of natural and probable consequences or under the so-called kill zone theory to prove Ayala's guilt as to all four victims. Ayala's contention is belied by the record of conviction and, in particular, his guilty plea in which he admitted he personally attempted to kill all four victims, who were specifically named and identified in the factual basis of his plea.
If proved, the kill zone theory can be used to convict a defendant of the attempted murder of a victim who was not the defendant's intended target. (People v. Canizales (2019) 7 Cal.5th 591, 596.) The theory only applies in cases where a jury finds "(1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm-that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death-around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm." (Id. at pp. 596-597.)
After independently reviewing the entire record, including the matters identified by counsel and Ayala, we find no arguable issue.
DISPOSITION
The trial court's postjudgment order is affirmed.
WE CONCUR: O'LEARY, P. J., GOETHALS, J.