Opinion
F085348
08-02-2023
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN RENDON BURCIAGA, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Erin Doering, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 19CM3981 Randy L. Edwards, Judge.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Erin Doering, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Petitioner Adrian Rendon Burciaga petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for premeditated attempted murder. The superior court denied the petition at the prima facie stage after determining that petitioner was not convicted under a natural and probable consequences or other imputed malice theory.
Undesignated statutory references are to the Penal Code. Former section 1170.95 has been renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.
On appeal, petitioner contends the court erred in failing to issue an order to show cause and hold an evidentiary hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Underlying Charges and Convictions
Petitioner was charged on August 14, 2019, with premeditated attempted murder (§§ 187, subd. (a), 664; count 1), with the allegation that petitioner personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). Petitioner also was charged with corporal injury resulting in a traumatic condition to someone in a dating relationship (§ 273.5, subd. (a); count 2), and making criminal threats (§ 422, subd. (a); count 3). In addition, the complaint alleged petitioner had a prior serious felony conviction, which also constituted a prior strike. (§§ 667, subds. (a)(1), (b)-(i), 667.5, former subd. (b), 1170.12, subds. (a)-(d).)
On October 1, 2019, petitioner pled guilty to "attempted willful, deliberate and premeditated murder" on count 1, and admitted the associated great bodily injury enhancement. The remaining charges and allegations were dismissed. In the change of plea form, petitioner admitted that "On Aug[ust] 13, 2019, in Kings County, I strangled and struck the [confidential victim] multiple times, causing great bodily injury." Additionally, at the hearing, the following factual basis was provided for the plea:
"On or about August 13, 2019, at approximately 1:20 in the morning at Lacey Park in Hanford in the County of Kings. The defendant and the victim, C.F., were in a dating relationship. The defendant then personally attempted to kill the victim, C.F., by strangling the victim to unconsciousness and then got on top of her striking her face with his fist over 20 times.
"The defendant did so with malice aforethought willfully with deliberation and premeditation, and this is evidenced not only by his actions but also by the fact he told the victim he would kill her if the cops came.
"As a result, the defendant personally inflicted great bodily injury causing multiple bruises to her face and neck and bleeding from both her mouth and nose."
The court asked, "[Petitioner], is that what happened," to which petitioner responded, "Yeah."
Petitioner was sentenced on November 4, 2019, to a stipulated term of seven years to life, plus three years.
II. The Petition for Resentencing
On February 17, 2022, petitioner filed a petition for resentencing pursuant to section 1172.6. Counsel was appointed to represent petitioner. The People opposed the petition on the ground that petitioner was ineligible for resentencing as a matter of law. The People noted petitioner had pled guilty in 2019, after the effective date of former section 1170.95, and it therefore was not possible he was prosecuted or pled guilty under a now-invalid natural and probable consequences theory. Petitioner argued the People nonetheless could have proceeded under an invalid natural and probable consequences theory had the case proceeded to trial, particularly given that former section 1170.95 was not immediately applicable to the offense of attempted murder. He further argued his plea to premeditated attempted murder did not bar his petition.
The matter was heard on November 7, 2022. The People noted this court had recently issued its opinion in People v. Romero (2022) 80 Cal.App.5th 145 (Romero). Based thereon, the People argued petitioner's admission that the attempted murder was committed willfully, deliberately, and with premeditation barred petitioner from making a prima facie showing of resentencing eligibility. The court denied the petition, stating that the record of conviction, and in particular the change of plea hearing and factual basis for the plea, confirmed that petitioner was not convicted under a natural and probable consequences or other imputed malice theory.
The court explained:
"Petitioner pled guilty to attempted murder. The complaint alleges that the [p]etitioner committed attempted murder willfully, deliberately and with premeditation. Petitioner admitted the allegation that the attempted murder was committed willfully, with premeditation and deliberation and agreed with the factual basis provided by the prosecutor. [Citations.] In this case there is no indicia that [p]etitioner was convicted under the felony-murder doctrine, a natural and probable consequences theory, or other imputed malice theory. Accordingly [p]etitioner is ineligible for resentencing as a matter of law."
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) "to amend the felony murder rule and 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, subd. (f); accord, People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).) The bill amended the natural and probable consequences doctrine by requiring that a principal act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The bill also amended the felony-murder rule in ways not relevant here. (§ 189, subds. (e), (f).)
Senate Bill No. 1437 also added former section 1170.95, now renumbered as section 1172.6, which provides a procedure for persons convicted of "attempted murder under the natural and probable consequences doctrine" to seek vacatur of the conviction and resentencing. (§ 1172.6, subd. (a).) Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1172.6, subds. (a)-(c); accord, Strong, supra, 13 Cal.5th at p. 708.) In making this determination, the court may rely on the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 970-971 (Lewis).) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at pp. 971-972.)
If the trial court determines the petitioner has met his or her prima facie burden, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction and to resentence the petitioner on any remaining counts." (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1172.6, subds. (c), (d)(1).) At this evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).) "A finding that there is substantial evidence to support a conviction for murder . . . is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.)
To demonstrate prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Petitioner is Ineligible for Resentencing as a Matter of Law
Petitioner maintains that he could have been prosecuted under the now-invalid natural and probable consequences doctrine, and he therefore is entitled to an order to show cause and an evidentiary hearing on the ultimate question of his resentencing eligibility. We conclude the record of conviction, and in particular the record of petitioner's change of plea, establishes petitioner is ineligible for resentencing as a matter of law.
The record of conviction establishes that petitioner was not convicted of attempted murder under a theory of liability that was eliminated by Senate Bill No. 1437.Petitioner pled guilty to willful, deliberate, and premeditated attempted murder. The factual basis provided for the plea included the fact that petitioner "personally attempted to kill the victim, C.F., by strangling the victim to unconsciousness and then got on top of her striking her face with his fist over 20 times," and that he did so "with malice aforethought willfully with deliberation and premeditation." Petitioner agreed this is "what happened." This admission to the charged enhancement allegation establishes that petitioner, as the actual perpetrator, attempted to kill with malice aforethought. (See People v. Concha (2009) 47 Cal.4th 653, 662 ["[W]hen malice is express because the defendant possessed a specific intent to kill, first degree murder liability may be proper if the charged defendant personally acted willfully, deliberately, and with premeditation." (italics omitted)]; People v. Thomas (1945) 25 Cal.2d 880, 900 [to prove a defendant premeditated and deliberated the consequences of his action, there must be "substantially more reflection than may be involved in the mere formation of a specific intent to kill"].) The admission therefore establishes the facts necessary to sustain petitioner's attempted murder conviction under the law as amended by Senate Bill No. 1437. (See Romero, supra, 80 Cal.App.5th at pp. 152-153.)
By the time petitioner entered his plea, Senate Bill No. 1437 had eliminated murder liability based on the natural and probable consequences doctrine. (Sen. Bill No. 1437; see § 188, subd. (a)(3).) However, Courts of Appeal initially split on the question of whether this change extended to the offense of attempted murder. (See People v. Flores (2020) 44 Cal.App.5th 985, 993-994 [collecting cases].) This split was not resolved until the passage of Senate Bill No. 775 (2021-2022 Reg. Sess.), which expressly extended resentencing relief to persons convicted of attempted murder. (See People v. Sanchez (2022) 75 Cal.App.5th 191, 196.) It therefore would have been theoretically possible, at the time of petitioner's prosecution, for the prosecutor to proceed against petitioner under a natural and probable consequences theory of attempted murder. In other words, petitioner's plea to attempted murder after the effective date of Senate Bill No. 1437, standing alone, does not establish his ineligibility for resentencing as a matter of law.
Petitioner nonetheless maintains that he may have been convicted of attempted murder under a natural and probable consequences theory, which may have been based on his aiding and abetting the offense of corporal injury resulting in a traumatic condition to someone in a dating relationship, simple assault, or assault with force likely to cause great bodily injury. However, the record refutes any inference that petitioner was convicted as an aider and abettor. (See Lewis, supra, 11 Cal.5th at p. 971 [" '[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."' "].) As stated, petitioner's own admissions establish that he, as the actual perpetrator, attempted to kill with malice aforethought.
Petitioner also contends that his admission to having committed the attempted murder willfully, deliberately, and with premeditation did not establish that he acted with actual malice. Citing People v. Rivera (2021) 62 Cal.App.5th 217, he argues he pled guilty to a "generic charge" of malice murder that could have encompassed an imputed malice theory. Petitioner is incorrect. Willful, deliberate, and premeditated murder (or attempted murder) applies where the defendant premeditated a specific intent to kill. (See People v. Concha, supra, 47 Cal.4th at p. 662.) Where, as here, the defendant is the actual perpetrator of the attempted murder, there is no possibility that the intent to kill was imputed to the defendant based merely on his or her participation in a crime.
In sum, petitioner is ineligible for resentencing as a matter of law and the section 1172.6 petition was properly denied.
DISPOSITION
The court's November 7, 2022 order denying the petition is affirmed.
[*] Before Detjen, Acting P. J., Smith, J. and Meehan, J.