Opinion
B333460
06-28-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO CHAVEZ, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA141155 Renee F. Korn, Judge. Affirmed.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, P. J.
Antonio Chavez filed in the superior court a petition for resentencing pursuant to Penal Code section 1172.6. The court denied the petition without an evidentiary hearing on the ground that Chavez failed to make a prima facie showing for relief. Chavez appealed.
All subsequent statutory references are to the Penal Code.
Chavez's appointed appellate counsel filed a brief identifying no issues on appeal and requesting that we follow the procedures outlined in People v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo). Chavez filed a supplemental brief in which he makes several contentions, which we address below. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 1997, a jury convicted Chavez and an accomplice of first degree murder of Leonard Flores (§ 187) and assault with a firearm against Marlene C. (§ 245, subd. (a)(2)). The jury also found true allegations that Chavez personally used a shotgun in the commission of each offense. (§ 12022.5, subd. (a).) The court sentenced Chavez to prison for 32 years to life. We affirmed the judgment in an unpublished opinion. (People v. Chavez et al. (June 22, 1999, B120262) (Chavez).)
In August 2022, Chavez filed a facially sufficient petition for resentencing under section 1172.6. The court appointed counsel to represent him.
In October 2022, the People filed a response to the petition and argued that Chavez was not eligible for relief because his jury was not instructed on felony murder or any other theory of imputed malice. The People supported the response with this court's Chavez opinion, the jury instructions given in Chavez's trial, and the jury's verdict forms. The instructions reveal that the jury was not instructed on the felony murder doctrine, the natural and probable consequences doctrine, or other theory of imputed liability.
Chavez's counsel filed a reply brief and a supplemental reply brief. The supplemental reply brief was supported by letters written by the mother of the murder victim, the victim of the assault and former girlfriend of the murder victim, and the murder victim's cousin. Chavez also submitted an excerpt of a transcript of a 2021 parole board hearing where the letters were read to the parole board. The victim's mother stated: "I believe in my heart that Antonio Chavez was falsely accused of killing my son," and she "would like to see Mr. Chavez released from prison." The assault victim and the former girlfriend of the murder victim stated that she "feel[s] as if [Chavez and his accomplice] are both innocent," and she has "no objections to their [being] released back into society." The cousin of the murder victim stated that five years after the murder she "found out" that Chavez and his accomplice "were innocent," and no one "should continue serving a life sentence while being innocent."
The court held a hearing to determine whether Chavez made a prima facie showing for relief. After reviewing the court file concerning Chavez's trial, including the jury instructions, the court determined that "none of the jury instructions indicate that the jurors were instructed on either felony-murder or on a natural and probable consequences theory necessary for [Chavez] to be eligible for resentencing under [section] 1172.6," and "the prosecution did not proceed under" these theories. The court rejected Chavez's reliance on the letters from the victim's relatives and former girlfriend because they "do not address theories of imputed malice and are not relevant to the inquiry in these [section] 1172.6 proceedings."
The court concluded that Chavez was "convicted of murder under current law and the changes to section 188 or 189, as required under section 1172.6 do not apply....[Chavez] was found guilty with malice aforethought. Accordingly, [Chavez] has failed to make a prima facie showing that he is eligible for resentencing under [section] 1172.6." The court thus denied Chavez's petition.
Chavez timely appealed and we appointed counsel to represent him. Counsel filed a brief raising no arguable issues and requesting that we follow the procedures set forth in Delgadillo. Counsel informed Chavez of her intention to file the Delgadillo brief and provided him with copies of the appellate record and her brief. Counsel further informed Chavez of his right to file a supplemental brief and that this court may dismiss his appeal if he does not file one. This court also informed Chavez of his right to submit a supplemental brief. Chavez thereafter timely filed a supplemental brief.
We are satisfied that counsel has complied with her obligations under Delgadillo.
DISCUSSION
Under Delgadillo, when appointed counsel files a brief in an appeal from the denial of a section 1172.6 petition and identifies no issues on appeal, the Court of Appeal is not required to conduct an independent review of the record to identify arguable issues, even when the defendant files a supplemental brief. (Delgadillo, supra, 14 Cal.5th at p. 232.) The reviewing court, however, has discretion to conduct such a review. (Ibid.) Cognizant of our discretion, we decline to conduct an independent review in this case.
If the appellant files a supplemental brief in a case governed by Delgadillo, we are "required to evaluate the specific arguments presented in [the defendant's supplemental] brief." (Delgadillo, supra, 14 Cal.5th at p. 232.) We now turn to those arguments.
A. Jury Instructions and Chavez's Ineligibility for Relief
We note at the outset that Chavez does not challenge the trial court's findings that "none of the jury instructions indicate that the jurors were instructed on either felony-murder or on a natural and probable consequences theory," and that "[Chavez] was found guilty of murder with malice aforethought." When, as here, "the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, . . . the petitioner is ineligible for relief as a matter of law." (See People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden); accord, People v. Cortes (2022) 75 Cal.App.5th 198, 205; People v. Daniel (2020) 57 Cal.App.5th 666, 677; People v. Soto (2020) 51 Cal.App.5th 1043, 1055; People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5.)
B. New Evidence and Factual Innocence
Chavez states that he was "not present for the crime which led to the murder," he is innocent of the murder and has "been incarcerated for 28 years for a crime that [he] did not commit," and that "new evidence [has] come to light that casts doubt on [his] guilt." His claim of innocence is supported, he argues, by the statements of witnesses who testified against him, which exonerate him. The referenced statements are apparently the letters he submitted with his petition, described above.
A petition under section 1172.6 is not an appropriate vehicle to seek relief based on new evidence establishing factual innocence. Section 1172.6 applies when the defendant could not presently be convicted of attempted murder "because of changes" to the law of murder that became effective in 2019. (§ 1172.6, subd. (a)(3), italics added.) The 2019 changes to the law of murder must therefore "supply a basis for the claim." (People v. Strong (2022) 13 Cal.5th 698, 712.)
Claims of actual innocence based on new evidence are properly raised by petition for writ of habeas corpus. (See In re Clark (1993) 5 Cal.4th 750, 796; People v. Gonzalez (1990) 51 Cal.3d 1179, 1246.)
Even if the letters Chavez submitted established that he is actually innocent of the crime, the challenge to his conviction on that basis would not be based on the 2019 changes to the law of murder; rather, his claim would be based on the fact that he did not commit the crime under the law as it existed before and after the changes in the law. The argument, therefore, does not support a prima facie showing for relief under section 1172.6.
C. Ineffective Assistance of Counsel
Chavez next argues that "the representation that [he] received for this resentencing petition has been fraught with concerns of ineffectiveness." Chavez further states that his public defender "filed a brief but failed to state a claim and merely went through the motions, thus robbing [him] of a quality defense, and compromising [his] right to a fair legal process." It is unclear whether Chavez is asserting the ineffective assistance of his counsel in the trial court proceedings or on appeal, or both. In any case, we reject the argument. Chavez has not explained how his counsel in the proceedings below "fell below an objective standard of reasonableness" as required to establish ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668, 688.) Nor can he establish prejudice given that the jury instructions reveal that his jury was not instructed as to felony murder or the natural and probable consequences doctrine, and he is therefore ineligible for relief as a matter of law. (Harden, supra, 81 Cal.App.5th at p. 52.)
To the extent Chavez is asserting that his appellate counsel was deficient for filing a no issue brief under Delgadillo, we disagree. Even if we assume that Chavez has a right to the effective assistance of counsel on appeal from the denial of a section 1172.6 petition, the claim is without merit for the same reason as his claim of ineffective assistance below: Chavez's jury was not instructed on felony murder or the natural and probable consequences doctrine and he is therefore ineligible for relief. (Harden, supra, 81 Cal.App.5th at p. 52.) Counsel is not ineffective for failing to make meritless arguments. (See, e.g., People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24; People v. Cudjo (1993) 6 Cal.4th 585, 616.)
The constitutional right to the effective assistance of counsel is derived from the Sixth Amendment right to counsel. (United States v. Cronic (1984) 466 U.S. 648, 654-655.) Because the right to counsel in section 1172.6 proceedings "is purely statutory," and is not guaranteed by the federal Constitution (Delgadillo, supra, 14 Cal.5th at p. 227), there would appear to be no constitutional right to the effective assistance of counsel in such proceedings.
D. Claim That Chavez Was Not the Shooter
Chavez contends that, "[a]lthough [he] was convicted of personally using a firearm, [he] was not convicted as the shooter." The assertion, if true, does not help him. Even if Chavez was not the actual shooter and was convicted as an aider and abettor of his accomplice, liability for murder as a direct aider and abettor- that is, as an aider and abettor who acted with express or implied malice aforethought-is still a viable theory of murder. (People v. Gentile (2020) 10 Cal.5th 830, 848 [the 2019 changes to the law of murder did "not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought"]; People v. Werntz (2023) 90 Cal.App.5th 1093, 1113 ["aiding and abetting implied malice murder is a permissible theory of murder liability" under current law].) The only theories of murder on which the court instructed Chavez's jury-including aiding and abetting-required the jury to find that he acted with malice aforethought. The possibility that he was not the shooter and acted as an aider and abettor to the shooter, therefore, does not establish a prima facie case for relief.
E. Sufficiency of the Evidence
Chavez argues that he "was convicted [based] solely [on] a line-up made of a group of individuals who were standing in front of a home near the crime scene." The argument suggests he is challenging the sufficiency of the evidence to support his 1997 conviction. The issue is not cognizable in a section 1172.6 proceeding. As the court in People v. Farfan (2021) 71 Cal.App.5th 942 stated: "The mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings. To the contrary, '[n]othing in the language of section [1172.6] suggests it was intended to provide redress for allegedly erroneous prior factfinding.... The purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.'" (Farfan, supra, at p. 947; People v. Flores (2023) 96 Cal.App.5th 1164, 1173 [same].)
Chavez requests that we "recall [his] conviction" pursuant to section 1172.1. That section provides that "the court may, on its own motion, . . . at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced." Any such relief must be sought in the trial court in the first instance.
G. Request for Replacement Appellate Counsel Lastly, Chavez asks that we appoint counsel for him. We did, however, appoint appellate counsel for him. If Chavez is asking for replacement counsel, the request is denied.
DISPOSITION
The order denying Chavez's petition for resentencing under section 1172.6 is affirmed.
We concur: CHANEY, J. WEINGART, J.