Opinion
H051333
07-29-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ADRIAN CEDILLO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. SS981662B)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
In 1999, a jury convicted defendant Daniel Adrian Cedillo of second degree murder (Pen. Code, § 187), and found true enhancements that defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that defendant was a principal in the murder and that at least one principal intentionally and personally discharged and personally used a firearm and proximately caused great bodily injury (§ 12022.53, subds. (b)-(e)(1)), and that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced defendant to prison for 40 years to life, but that sentence was later reduced to 16 years to life as the result of two enhancements being struck on appeal.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant later twice petitioned under section 1170.95 (now designated as section 1172.6) to have his second degree murder conviction vacated and to be resentenced. The trial court denied both petitions, concluding that defendant failed to establish a prima facie case of eligibility for relief. Defendant asserts that the trial court erred in dismissing his second petition at the prima facie stage because the jury instructions in his trial left open the possibility that he was convicted under a theory of imputed malice that is no longer a valid theory of murder culpability. For the reasons discussed below, we affirm the trial court's ruling denying defendant's petition because defendant has failed to establish a prima facie case of eligibility for relief.
For ease of reference, we will refer to this statute by its current designation, section 1172.6.
Defendant's second petition is not contained in the appellate record. On our own motion, we take judicial notice of our opinion in a previous appeal by defendant concerning the denial of the second petition, and of the appellate record in that previous appeal (People v. Cedillo (Mar. 24, 2023, H049841) [nonpub. opn.]). (Evid. Code, § 452, subd. (d)(1).) The appellate record in that previous appeal contains defendant's second petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
This factual background is a summary of the facts stated in this court's opinion in defendant's initial appeal from the judgment (People v. Palacios et al. (Jul. 20, 2021, H020064) [nonpub. opn.]). The opinion in defendant's initial appeal is contained in the appellate record in the instant matter. The beginning portion of the procedural background section in the current opinion also summarizes matters stated in this court's opinion in defendant's initial appeal. The brief factual summary in the current opinion is offered to provide general background as to the evidence presented at defendant's trial, not to resolve any contested factual matters. (See People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238 [factual summary in a prior appellate opinion cannot establish ineligibility for section 1172.6 relief at the prima facie stage].)
Defendant and other men had a history of causing trouble at a bar in Chualar. On March 23, 1998, Ignacio Valencia, who co-owned the bar with his wife, went out to investigate a situation in the bar's parking lot. Valencia found defendant sitting in a car with the door open, with two other men nearby. Valencia asked defendant what he was doing in the car, and defendant responded by calling Valencia names. They began to argue, and Valencia approached defendant in a threatening manner. Valencia's wife told defendant and the other men to leave, but they did not. Valencia then drew a gun and fired into the air, causing the three men to scatter. As the men left, Valencia's wife heard one of the men, Michael Palacio, say in Spanish that Valencia had "bought his death."
Valencia then drove to his nearby home, where four of his wife's children were present. A few minutes later, one of the children heard gunshots, with one of the shots entering the house. When the child looked out the window, she saw Valencia lying on the ground. One of the children then called law enforcement. Sheriff's deputies who responded heard shots from what sounded like a .22-caliber automatic weapon, then a couple of shots from a larger caliber firearm, and then more .22-caliber shots. The deputies arrived on the scene and saw some men running, including Palacio (whom a deputy recognized). Deputies also arrested defendant and a third man. A deputy who responded to Valencia's residence found Valencia lying face down. Valencia later died from multiple gunshot wounds. Deputies found a pistol underneath Valencia's body and spent casings nearby, and they found a pair of gloves, a .22-caliber rifle, and spent shell casings across the street from Valencia's residence. Palacio's fingerprints were on the rifle, and some of the casings had been fired from it. Deputies found gang paraphernalia during a search of Palacio's home.
While defendant was in county jail awaiting trial, he had a conversation with a visitor over the jail's intercom that was surreptitiously recorded. When the visitor told defendant that she wanted to be a bartender, defendant responded, "Babe, I killed the bar owner. Don't do bartending."
At trial, an expert on criminal street gangs in the area testified that he believed Palacio and defendant belonged to a gang called "Varrio Ghost Town," and that Valencia's killing was committed for the benefit of the gang.
B. Procedural Background
Defendant and Palacio were tried together, charged by information with murder while lying in wait. (§ 187, subd. (a).) The information also alleged firearm and criminal street gang enhancements. The jury convicted Palacio of first degree murder and convicted defendant of second degree murder, and the jury found the enhancements against both defendants true. The trial court sentenced defendant to 15 years to life for the murder, and a consecutive sentence of 25 years to life for a firearm enhancement, for a total sentence of 40 years to life. The trial court stayed the sentence imposed on defendant for the remaining enhancements.
In the initial appeal by defendant and Palacio, this court rejected defendant's argument that substantial evidence did not support his second degree murder conviction, struck the gang and discharging a firearm enhancements for both defendants, and ordered both defendants to receive additional presentence custody credit. (People v. Palacio et al., supra, H020064.) On remand, the trial court imposed an aggregate sentence of 16 years to life for defendant.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) took effect on January 1, 2019, imposing a number of "statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) Senate Bill 1437 added what is now designated as section 1172.6, which allowed a person convicted in a case involving felony murder or murder under the natural and probable consequences doctrine to file a petition with the sentencing court to vacate the conviction and to be resentenced.
Defendant filed a petition under section 1172.6 in January 2019, asserting that he could no longer be convicted of first or second degree murder because of changes made to sections 188 and 189 involving murder. The trial court denied the petition at the prima facie stage, noting that defendant was not convicted under the felony-murder rule or the natural and probable consequences doctrine.
Effective January 1, 2022, the Legislature codified further changes concerning murder law and imputed malice. Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) amended what is now section 1172.6, authorizing "[a] person convicted of felony murder or 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" to petition for relief. (Stats. 2021, ch. 551, § 2, subd. (a).)
Defendant filed another section 1172.6 petition in January 2022, soon after Senate Bill 775's changes took effect. The trial court denied the second petition at the prima facie stage, citing the ruling by a different judge that denied defendant's first petition. This court reversed the trial court's order, concluding that the trial court failed to conduct an independent review of defendant's second petition. (People v. Cedillo, supra, H049841.)
On remand, the prosecution opposed defendant's second petition, asserting that defendant did not establish a prima facie case that, as required by section 1172.6, subdivision (a)(3), he "could not presently be convicted of murder because of changes to Section 188 or 189 made effective January 1, 2019." Defendant replied to the prosecution's opposition, contending that he did establish a prima facie case because "there was a currently incorrect theory of malice under today's law that infected the judgment." Specifically, defendant argued that while he was convicted under an aiding and abetting theory of murder-not felony murder or murder under the natural and probable consequences doctrine-"there was no language in the instructions given [at trial] to indicate that the act that the aider and abettor aided must proximately cause the death and is a substantial factor contributing to the result." Defendant argued that these instructions allowed the jury to impute malice to him. Moreover, defendant asserted that while his jury was not instructed on the natural and probable consequences doctrine, the prosecution's theory of the case was that defendant was guilty because he "was there as part of a cheering group or part of the mob/team," and that under this theory, "[t]he erroneous watered down implied malice instructions were essentially now the no longer valid natural and probable consequences instruction with the title implied malice."
The trial court denied the petition in an oral ruling, concluding that defendant failed to establish a prima facie case for section 1172.6 relief. The trial court stated: "The jury instructions and the jury trial transcript conclusively established that the petitioner could not have been prosecuted under any theory of imputed malice based solely on the petitioner's participation in a target crime." The trial court rejected defendant's argument that the aiding and abetting and murder instructions in his case equated to an instruction on the natural and probable consequences doctrine, stating that "the jury was not instructed on any target offense upon which a second-degree murder based on the natural and probable consequences[] theory could be based." The trial court stated: "The defendant was convicted because the jury found the defendant culpable for murder, second-degree murder, based on his own actions and his own mental state as a direct aider and abettor of murder, second-degree murder, not based on any theory of imputed malice." The trial court then stated in conclusion: "As a matter of law in this case, the petitioner was not prosecuted under any impermissible theory that would allow for malice to be transferred based solely on his participation in a target crime. Rather, the only conclusion to be drawn from the jury instructions, arguments, and verdicts in this case is that the defendant, personally, harbored malice. [¶] In that, one, the petitioner knew of the unlawful purpose of the perpetrator, and, two, the defendant had the intent and purpose of committing or encouraging or facilitating the crime of murder and aided, permitted, promoted, encouraged, instigated the commission of the murder. [¶] As the petitioner has failed to make a prima facie showing for relief, the petition is respectfully denied."
This appeal followed.
III. DISCUSSION
Defendant contends that the trial court erred in denying his second petition without issuing an order to show cause and conducting an evidentiary hearing. He does not assert that he was convicted under the felony-murder rule or the natural and probable consequences doctrine, the two theories explicitly affected by recent changes to California murder law. Instead, he argues that "[t]he instructions provided to the jury on second degree murder and aider and abettor liability allowed the jury to impute Palacio's malice to [defendant], without finding [defendant] personally acted 'with knowledge of the danger to, and with conscious disregard for, human life.'" Defendant asserts that the instruction provided on malice aforethought (CALJIC No. 8.11) did not require proof of defendant's knowledge and intent with regard to Palacio's lifeendangering act of shooting the victim. Thus, defendant argues, "the jury did not necessarily find [defendant] guilty of second degree murder under the current law," and an evidentiary hearing was required. Defendant relies in large part on People v. Langi (2022) 73 Cal.App.5th 972 (Langi) to support his argument that the instructions in the current case did not preclude his conviction of second degree murder based on a theory of imputed malice. Defendant also asserts that if this court finds that he forfeited this argument by failing to specifically raise it to the trial court, he was denied his right to effective assistance of counsel.
In response, the Attorney General does not specifically dispute that Palacio was the actual killer of Valencia, but the Attorney General contends that defendant forfeited his claim that the instructions permitted his conviction on a now-invalid theory of imputed malice murder by failing to raise the same arguments to the trial court that he now raises on appeal. Alternatively, the Attorney General asserts that the instructions provided at trial required the jury to find that defendant acted with his own malice to convict him of second degree murder, asserting that Langi was wrongly decided and that defendant's claim of instructional error is not properly raised in a section 1172.6 petition.
Under section 1172.6, "[a] person convicted of felony murder or 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 . . . may file a petition with the court that sentenced the petitioner to have the petitioner's murder . . . conviction vacated and to be resentenced on any remaining counts" when all of certain conditions apply. (Id., subd. (a).) One such condition is that "[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." (Id., subd. (a)(3).) Under section 1172.6, "the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 [citation]." (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) "After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (People v. Lewis (2021) 11 Cal.5th 952, 971.) "While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "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."' [Citations.]" (Ibid.) "If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.]" (Strong, supra, at p. 708.)
Section 188 generally covers the requirement for the prosecution to prove malice in a murder case. Subdivision (a)(3) of section 188 states: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." Section 189 generally covers degrees of murder and liability for murder. Subdivision (e) of section 189 addresses situations in which a participant in the perpetration or attempted perpetration of a listed felony in which a death occurs remains liable for murder following the changes effected by Senate Bill 1437.
"We review de novo a trial court's denial of a section 1172.6 petition at the prima facie stage. [Citation.]" (People v. Bodely (2023) 95 Cal.App.5th 1193, 1200 (Bodely).)
The record of conviction in the current case establishes as a matter of law that defendant is not eligible for section 1172.6 relief, and thus the trial court did not err by denying the petition at the prima facie stage. The closing arguments at trial establish that no theory of imputed malice was raised. The prosecutor never argued that Palacio's malice should be imputed to defendant based on defendant's participation in an underlying crime. Instead, the prosecutor argued that defendant was guilty based on his own actions and his own mental state. The prosecutor argued: "Daniel Cedillo is just as guilty as the trigger man. He certainly demonstrated a crystal clear understanding of his liability as an aider and abettor when he spoke to his visitor in the jail discouraging her from her career plan to be a bartender. He told her, 'Babe, I killed the bar owner,' that's exactly what he said." The prosecutor argued based on defendant's statement to the jail visitor that defendant "is no innocent bystander than [sic] a member of a lynch mob going out to kill someone unlawfully." The prosecutor argued that defendant was guilty of murder as an aider and abettor, noting that under aiding and abetting law "[i]t's not enough simply to be there," and that defendant was guilty as an aider and abettor because he "encouraged [Palacio] like a little cheering section," he went along with Palacio "hunting for Mr. Valencia," and he came "along for moral support, part of the lynch mob." The prosecution's theory was that Palacio shot Valencia with the intent to kill him, and that defendant aided and abetted Palacio. No argument at trial suggested that the jury could impute malice to defendant based solely on defendant's participation in a crime.
The jury's verdicts similarly establish that defendant was not convicted under a theory of imputed malice. No crime other than murder was charged in this matter. A person is only eligible for section 1172.6 relief when he or she was convicted 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 ...." (Id., subd. (a).) "The existence of an underlying felony or target offense is an essential predicate to any successful resentencing petition under section 1172.6." (People v. Arellano (Jul. 11, 2024, S277962) Cal.5th [2024 Cal. Lexis 3469 at p. *24].) "Consequently, the 'target offense or underlying felony' under section 1172.6, subdivision (e) [covering redesignation and resentencing in a successful petition] is the offense or felony that was the predicate for relief in the first place-i.e., the offense or felony that supported the prosecution's theory of felony murder, murder under the natural and probable consequences doctrine, or any other theory in which malice is imputed based solely on that person's participation in a crime." (Id. at p. [p. *25].) Here, no underlying felony or target offense was charged or presented to the jury, and the jury made no finding regarding defendant's participation in any underlying felony or target offense. The jury's verdicts establish that defendant was not convicted based on a theory under which malice was imputed to him based on his participation in a crime.
Finally, the jury instructions also establish that defendant was not convicted pursuant to a theory under which malice was imputed to him based solely on his participation in a crime. The jury convicted defendant of second degree murder, not first degree murder, but the jury was instructed that to find defendant guilty of either form of murder, it must find that defendant acted with malice aforethought, either express or implied malice. As the trial court noted in denying the section 1172.6 petition, defendant's jury was not instructed on felony murder or murder under the natural and probable consequences doctrine. If the jury found defendant was guilty as an aider and abettor of Palacio's intentional killing, then the jury found that defendant possessed his own malice aforethought. To find defendant guilty as an aider and abettor of murder, the jury was instructed that it needed to find that defendant acted with knowledge of the unlawful purpose of the perpetrator (Palacio), that defendant acted with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and that defendant by act or advice aided, promoted, encouraged, or instigated the commission of the crime. In this case, the "crime" referred to in the aiding and abetting instruction is murder. No other crime was at issue in this case. Palacio was convicted of first degree murder, and defendant could not have had the intent or purpose to aid and abet Palacio in committing murder without possessing his own malice aforethought.
The jury was correctly instructed with CALJIC No. 3.01 on direct aiding and abetting liability. "[U]nder direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with 'knowledge of the direct perpetrator's unlawful intent and [with] an intent to assist in achieving those unlawful ends.'" (People v. Gentile (2020) 10 Cal.5th 830, 843, superseded by statute on other grounds as stated in People v. Wilson (2023) 14 Cal. 5th 839, 869.) "[F]or second degree murder based on implied malice, there is no imputation of malice because, as we have explained, the direct aider and abettor must have the same mental state as the actual perpetrator of the charged crime: the direct aider and abettor must act with knowledge that the act is dangerous to human life and with conscious disregard for human life. Given the mens rea requirements for aiding and abetting implied malice, not only is malice not 'imputed' on this direct aiding and abetting theory, but liability is not grounded 'solely' upon participation in the crime within the meaning of section 188, subdivision (a)(3) as amended in Senate Bill 1437. Liability for murder is grounded upon the requirement that the aider and abettor personally harbor malice." (People v. Glukhoy (2022) 77 Cal.App.5th 576, 590-591.) If the jury convicted defendant of murder on a theory of direct aiding and abetting, the jury necessarily concluded that defendant knew of Palacio's unlawful purpose to shoot Valencia and that defendant intended to aid and abet Palacio in committing the crime of murder. There is nothing in the record to indicate that the purpose Palacio and defendant shared was to do anything less than murder Valencia. Thus, the record of conviction conclusively establishes that defendant was not convicted of murder based on a theory of imputed malice.
Langi does not support defendant's argument that as instructed, defendant's jury could have convicted him of murder on a theory of imputed malice. In Langi, the jury convicted the defendant of second degree murder after the defendant participated in a fight involving several people in which the victim was punched in the face, fell, and hit his head, resulting in his death. (Langi, supra, 73 Cal.App.5th at p. 975.) After the trial court denied the defendant's section 1172.6 petition at the prima facie stage because it found Langi was the actual killer, the Court of Appeal reversed, finding the CALJIC instruction on aiding and abetting created an ambiguity by allowing the jury to find the defendant guilty of second degree implied malice murder without finding that he personally acted with malice. (Langi, supra, at pp. 977, 981-984.) The Langi court concluded that "the second degree murder instruction specified that the direct perpetrator of that crime need not act with the unlawful intent of causing death," and thus the perpetrator's "purpose may have been only to strike or to injure, or conceivably only to embarrass, the victim." (Id. at p. 982.) Because the perpetrator need not have had" 'murderous intent,'" the Langi court reasoned, Langi as the aider and abettor also did not need to possess intent to kill to be convicted of second degree murder. (Ibid.) By contrast, here Palacio shot Valencia after a confrontation. Palacio was found guilty of first degree murder, meaning that the jury concluded that he acted with intent to kill. The prosecution's sole theory was that Palacio intended to kill Valencia based on Valencia's earlier act of drawing a gun and firing it into the air, and that defendant aided and abetted this intentional killing. Unlike Langi, here there was no possibility that the jury might interpret the instructions to allow it to convict defendant based on his intent to achieve some lesser end than murder, such as to injure or embarrass the victim.
Defendant also argues that People v. Reyes (2023) 14 Cal.5th 981 (Reyes) requires an evidentiary hearing in this case. In Reyes, the California Supreme Court concluded that aiding and abetting an implied malice murder remains a viable form of murder liability, notwithstanding recent changes to California murder law. (Reyes, supra, at p. 990.) However, our Supreme Court concluded that the trial court erred by denying the defendant's section 1172.6 petition following an evidentiary hearing. (Reyes, supra, at p. 984.) The court held that in denying the petition, the trial court "did not appear to recognize that implied malice murder requires, among other elements, proof of the aider and abettor's knowledge and intent with regard to the direct perpetrator's life endangering act. [Citation.]" (Id. at p. 991.) The court in Reyes noted that the defendant's jury was instructed on the natural and probable consequences doctrine at trial, and that the trial court accordingly considered whether the defendant remained guilty of murder under one of two still-valid theories: simple implied malice murder, or directly aiding and abetting implied malice murder. (Id. at pp. 985, 987.) As to the latter theory, our Supreme Court stated: "Here, assuming the life-endangering act was the shooting, the trial court should have asked whether Reyes knew that [the perpetrator] intended to shoot at the victim, intended to aid him in the shooting, knew that the shooting was dangerous to life, and acted in conscious disregard for life. [Citation.] Because the court did not do so, its decision was based on an error of law insofar as the court sustained Reyes's murder conviction on a direct aiding and abetting theory." (Id. at p. 992.)
By contrast, defendant's jury in the instant case was not instructed on the natural and probable consequences doctrine. As the trial court noted in denying defendant's petition, this fact distinguishes the instant case from Reyes, where the question was whether Reyes's guilt was proven beyond a reasonable doubt despite the fact that Reyes's jury was instructed on the natural and probable consequences doctrine. Here, the only possible crime defendant could have aided and abetted Palacio in committing was the intentional killing of Valencia." '[T]o be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.' [Citations.]" (Reyes, supra 14 Cal.5th at p. 991.) The record of conviction, including the jury instructions, conclusively establishes that the jury found defendant acted with the requisite mens rea. Thus, Reyes does not demonstrate that the trial court erred by denying defendant's section 1172.6 petition at the prima facie stage.
Our Supreme Court has long recognized that "the weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]" (People v. Beeman (1984) 35 Cal.3d 547, 560.) The requirements for direct aiding and abetting culpability have not been altered by recent amendments to California murder law, and thus defendant cannot show that he could not presently be convicted of murder "because of" changes to sections 188 and 189. (§ 1172.6, subd. (a)(3).) To the extent that defendant argues that his instructions erroneously stated the requirements for aiding and abetting murder under the law at the time of his trial, his recourse was to raise this issue in his initial appeal from the judgment at trial. (See People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 936 [§ 1172.6 petitioner's challenge that instructions allowed the jury to convict him as a direct aider and abettor of murder on an imputed malice theory "amounts to 'a routine claim of instructional error' that 'could have been asserted on appeal from the judgment of conviction.' [Citation.]"]; see also People v. Flores (2023) 96 Cal.App.5th 1164, 1173-1174; Bodely, supra, 95 Cal.App.5th at p. 1205; People v. Burns (2023) 95 Cal.App.5th 862, 867-869; People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Defendant raised an issue of instructional error in his initial appeal, but he did not assert that the trial court's instructions on aiding and abetting or second degree murder were erroneous.
In finding defendant guilty of direct aiding and abetting second degree murder in the instant case, the jury convicted defendant based on his own malice, not based on a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (§ 1172.6, subd. (a).) The record of conviction conclusively establishes that defendant is ineligible for section 1172.6 relief, and thus the trial court did not err in denying defendant's petition at the prima facie stage. (See Strong, supra, 13 Cal.5th at p. 708.)
Because we have addressed the merits of defendant's argument that the trial court erred in denying his section 1172.6 petition at the prima facie stage, we need not address the Attorney General's argument that defendant forfeited this issue or defendant's argument that he received ineffective assistance of counsel if this issue is considered forfeited.
IV. DISPOSITION
The trial court's order denying defendant's petition for resentencing is affirmed.
WE CONCUR: DANNER, J., WILSON, J.