Opinion
B331948
10-18-2024
THE PEOPLE, Plaintiff and Respondent, v. FROYLAN CARBAJAL, Defendant and Appellant.
Elizabeth K. Horowitz, 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, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. MA042458, Kathleen Blanchard, Judge. Affirmed.
Elizabeth K. Horowitz, 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, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
Penal Code section 1172.6 authorizes a trial court to resentence a defendant who was convicted of attempted murder if the prosecution fails to prove beyond a reasonable doubt that the defendant is guilty of that offense under our state's law "as amended by the changes to Section 188 or 189 made effective January 1, 2019." (See § 1172.6, subds. (a), (d)(1), &(d)(3).) Here, upon finding the prosecution had discharged that burden, the trial court denied defendant Froylan Carbajal's petition for resentencing. We affirm because Carbajal pleaded nolo contendere to two counts of attempted murder and stipulated to a factual basis for his plea, and there is substantial evidence that he personally committed those offenses.
Undesignated statutory citations are to the Penal Code. Prior to June 30, 2022, section 1172.6 was codified in section 1170.95. (See Stats. 2022, ch. 58, §§ 10, 47 [Assem. Bill No. 200, which renumbered § 1170.95 as § 1172.6, and provided that the statute took effect immediately on June 30, 2022]; People v. Delgadillo (2022) 14 Cal.5th 216, 223, fn. 3 [noting that Assem. Bill No. 200 renumbered former § 1170.95 to § 1172.6 without any substantive change].) For the sake of clarity and consistency, we refer to the statute as section 1172.6.
FACTUAL AND PROCEDURAL BACKGROUND
In describing the procedural history and the evidence considered by the trial court in ruling on Carbajal's petition for resentencing, we rely in part on admissions made by the parties in their appellate briefing. (See Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674 [" 'An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.' "]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[A] reviewing court may make use of statements [in briefs and argument] . . . as admissions against the party [advancing them].' "].)
We summarize only those facts pertinent to our disposition of this appeal.
In June 2008, the People filed a complaint alleging Carbajal committed three counts of attempted murder in violation of sections 187 and 664 (count 1 as to Tony B., count 2 as to Chris C., and count 3 as to Christopher M.); and three counts of assault with a firearm in violation of section 245, subdivision (a)(2) (counts 4, 5, and 6 as to the same three victims, respectively).
At the preliminary hearing held in September 2008, the trial court heard evidence that: In May 2008, the three victims named in the complaint were riding in an automobile when another automobile began following them. Three individuals, including Carbajal, were in that second vehicle that was pursuing the victims' automobile. When the victims' vehicle stopped, the second automobile also stopped. Tony B. and Chris C. exited their automobile and started to walk toward the vehicle that had been following them. Carbajal, who was in the rear passenger seat of the pursuing vehicle, then shot at all three victims, thereby injuring Tony B. and Chris C.
Carbajal was held to answer on all six counts.
In March 2009, Carbajal entered into a negotiated plea. In accordance with the plea bargain, Carbajal pleaded nolo contendere to counts 1 and 2; in connection with count 1, Carbajal admitted to discharging a firearm within the meaning of section 12022.53, subdivision (c); and, regarding count 2, Carbajal admitted to personally using a firearm for the purposes of section 12022.53, subdivision (b). Pursuant to the parties' agreement, the trial court sentenced Carbajal to an aggregate state prison term of 34 years eight months, which consists of a term of nine years on count 1, followed by a consecutive sentence of 20 years pursuant to the firearm enhancement on that count, and a consecutive term of two years four months on count 2, followed by a consecutive sentence of three years four months for the firearm enhancement on that count. The trial court dismissed counts 3, 4, 5, and 6.
Our record does not indicate that Carbajal appealed from the judgment of conviction, and our own court records also do not show he filed any such appeal. In 2020, we affirmed the trial court's order denying Carbajal's motion to strike the firearm enhancements. (People v. Carbajal (Sept. 21, 2020, B305861) [nonpub. opn.] [2020 WL 5627085, at pp. *1-2].)
We, sua sponte, take judicial notice of our prior opinion. (Evid. Code, §§ 452, subd. (d), 459.)
In August 2022, Carbajal filed a petition for resentencing pursuant to section 1172.6. The trial court appointed counsel to represent Carbajal. The prosecution conceded that Carbajal had made a prima facie showing, and the trial court issued an order to show cause why relief should not be granted. The prosecution opposed the petition and Carbajal's counsel filed a response.
On June 23, 2023, the trial court held an evidentiary hearing. The court took judicial notice of its own files, including the transcript of Carbajal's plea. There was no live testimony at the hearing. Upon hearing oral argument from Carbajal's counsel, the court denied the petition. The court reasoned the preliminary hearing and plea transcripts proved beyond a reasonable doubt that Carbajal was "the actual shooter ...." The court also noted that in entering his plea, Carbajal admitted to personally using and discharging a firearm.
Carbajal timely appealed the trial court's denial of his petition.
STANDARD OF REVIEW
"[A] trial court's decision denying a petition under section 1172.6 following an evidentiary hearing is predominantly a question of fact" that is reviewed for "substantial evidence." (See People v. Underwood (2024) 99 Cal.App.5th 303, 314.) "Under this standard, we review the record '" 'in the light most favorable to the [order or] judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'"' [Citation.]" (See People v. Reyes (2023) 14 Cal.5th 981, 988.)" 'If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' [Citation.]" (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363, italics omitted.)
Under the substantial evidence standard, "we must begin with the presumption that the evidence . . . was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, 'without a statement or analysis of the evidence, . . . that the evidence is insufficient ....' [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient." (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
DISCUSSION
"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 'to amend 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.' [Citation.] In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill [No.] 1437 added section [1172.6], which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (See People v. Lewis (2021) 11 Cal.5th 952, 959.)
"Senate Bill No. 775 expanded the class of defendants entitled to relief to those convicted of attempted murder under the natural and probable consequences doctrine." (See People v. Rodriguez (2024) 103 Cal.App.5th 451, 457 (Rodriguez).) "Under t[he natural and probable consequences] doctrine, an aider and abettor who lacked a specific intent to kill could be found guilty of attempted murder solely due to their participation in a different target crime, if attempted murder was the natural and probable consequence of the target crime." (Id. at p. 456.)
On appeal, Carbajal asks us to reverse the denial of his resentencing petition "because the trial court did not find that [Carbajal] acted with malice aforethought." (Boldface &capitalization omitted.) Carbajal contends that because the court's ruling rested solely on its finding that he "was the actual shooter," "the court did not find that [Carbajal] acted with malice." He further argues, "[W]hile the trial court relied on the plea and preliminary hearing transcripts, neither established that [Carbajal] acted with malice because he could have taken the plea while facing the threat of prosecution under the natural and probable consequences doctrine, and neither demonstrates that [Carbajal] admitted to acting with malice." Lastly, Carbajal asserts his "admission that he discharged a weapon also does not equate to an admission of malice, because enhancements under section 12022.53 involve only general intent allegations and do not require a showing of malice."
As an initial matter, insofar as Carbajal claims the trial court had to make an explicit finding that he acted with malice aforethought, he is mistaken."' "We imply all findings necessary to support the judgment [or order], and our review is limited to whether there is substantial evidence in the record to support these implied findings."' [Citation.]" (See People v. Therman (2015) 236 Cal.App.4th 1276, 1279.) In denying Carbajal's petition following the evidentiary hearing, the trial court impliedly found beyond a reasonable doubt that he was guilty of attempted murder notwithstanding legislative amendments that eliminated vicarious liability for this offense. (See § 1172.6, subd. (d)(3) [providing that the prosecution bears the burden of showing beyond a reasonable doubt that "the petitioner is guilty of . . . attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019"]; People v. Cortes (2022) 75 Cal.App.5th 198, 203-204, 206 (Cortes) [indicating that these amendments to § 188 and § 189 eliminated "vicarious liability" for attempted murder].)" 'Attempted murder requires the specific intent to kill,'" i.e., "express malice,"" 'and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citation.]" (See People v. Stone (2009) 46 Cal.4th 131, 136, 139.) Accordingly, the dispositive question is whether Carbajal has shown the absence of substantial evidence establishing both essential elements of his two convictions for attempted murder.
As we explain below, Carbajal's plea and preliminary hearing transcripts constitute substantial evidence that Carbajal personally acted with the requisite mens rea.
"The legal effect" of Carbajal's plea of nolo contendere to two counts of attempted murder is "the same as a plea of guilty for all purposes." (See § 1016, subd. (3).) A guilty plea is" 'an admission of every element of the crime and is the equivalent of a conviction.' [Citation.]" (Rodriguez, supra, 103 Cal.App.5th at p. 458; see also People v. McLemore (1985) 166 Cal.App.3d 718, 722, fn. 4 [noting that a "plea of nolo contendere admit[s] all facts necessary to the conviction" "includ[ing] the existence of the requisite mental state"].) In light of Carbajal's plea of nolo contendere, "[t]he only issue that remained to be determined at the evidentiary hearing was whether intent was imputed to him because he aided and abetted an accomplice in the perpetration of a different crime, or whether he was the sole perpetrator whose intent was personal to him." (See Rodriguez, at pp. 454-455.)
Carbajal intimates the trial court would not have found he made a prima facie showing of entitlement to relief if the transcript of his plea had "demonstrate[d] that [he] admitted to acting with malice." We disregard this contention because Carbajal does not argue, let alone cite authority establishing, that the court's issuance of an order to show cause precludes it from later relying upon the transcript of Carbajal's plea to deny his petition after an evidentiary hearing. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may . . . pass it without consideration.' "].)
Carbajal acknowledges that when he entered the plea, "his counsel stipulated to a factual basis for the plea based on the police reports and the preliminary hearing transcript," and that the preliminary hearing transcript in turn shows that "[m]ultiple witnesses . . . identified [Carbajal] as the shooter." Carbajal does not argue there is evidence that an accomplice committed the attempted murders.
Furthermore, although we agree with Carbajal that his admissions as to the firearm allegations by themselves "do[ ] not equate to an admission of malice," these admissions support the trial court's finding that Carbajal was the direct perpetrator of the attempted murders. Because Carbajal could not have been convicted of attempted murder under the natural and probable consequences doctrine, the only hypothesis defendant advocates, he is not entitled to resentencing under section 1172.6. (See Cortes, supra, 75 Cal.App.5th at pp. 203-204, 206; see also People v. Hurtado (2023) 89 Cal.App.5th 887, 893 [holding that a defendant is" 'ineligible for relief' as 'a matter of law'" under section 1172.6 if "[h]e alone attempted to commit murder"].)
(Citing People v. Offley (2020) 48 Cal.App.5th 588, 597598.)
(See § 12022.53, subd. (b) [enhancing a prison sentence for a defendant who "personally uses a firearm" "in the commission of a felony specified in subdivision (a)"]; id., subd. (c) [enhancing a prison sentence for a defendant who "personally and intentionally discharges a firearm" "in the commission of a felony specified in subdivision (a)"]; id., subds. (a)(1) & (a)(18) [providing that attempted murders are subject to § 12022.53's enhancements].)
In sum, Carbajal's plea of nolo contendere, the preliminary hearing transcript, and Carbajal's admissions that he personally used and discharged a firearm constitute substantial evidence that he is guilty of two counts of attempted murder under current law. We thus reject Carbajal's challenge to the trial court's order denying his petition for resentencing.
DISPOSITION
We affirm the trial court's June 23, 2023 order denying defendant Froylan Carbajal's petition for resentencing.
We concur: ROTHSCHILD, P. J., KLINE, J. [*]
[*] Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.