Opinion
G061880
02-20-2024
THE PEOPLE, Plaintiff and Respondent, v. LORENZO BERNABE FLORES, Defendant and Appellant.
Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 11CF2415, Andre Manssourian, Judge. Affirmed.
Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
In 2013, a jury convicted Lorenzo Bernabe Flores of conspiracy to commit murder, attempted murder, and other crimes; he was sentenced to 55 years to life in prison. His conviction was affirmed by this court in 2015. (People v. Flores (Feb. 9, 2015, G048666) [nonpub. opn.] (Flores I).)
In 2022, Flores filed a petition for resentencing following the enactment of Penal Code section 1170.95 (later renumbered section 1172.6), which limits accomplice liability for murder and attempted murder under the natural and probable consequences (NPC) doctrine and the felony-murder rule. The trial court denied his petition. As discussed below, Flores's conviction for conspiracy to commit murder establishes Flores had an intent to kill, which renders him ineligible for resentencing under section 1172.6. We therefore affirm.
All further statutory references are to this code.
FACTS
Flores was a member of the Lopers gang. One night in 2011, Flores drove with fellow Lopers gang member Andrew Chavez and Yasmin Ramos to the residence of a former Lopers gang member and retrieved a gun that belonged to the gang. Flores, Chavez, and Ramos then drove around looking for rival members from the Krazy Proud Criminals (KPC) to attack, as Flores held the loaded gun in his lap. They did not find any members of KPC, but they did encounter two members of a different gang. Flores ordered Chavez to shoot them, and he did. (Flores I, supra, G048666.)
After the shooting, Ramos telephoned Daniel J. claiming she needed money for gas. Daniel J. agreed to meet Ramos at a gas station. Meanwhile, a third Lopers gang member arrived. When Daniel J. arrived, the third gang member showed him a screwdriver and ordered him to hand over his car keys. Flores approached Daniel J.'s vehicle from the passenger side, and another male raised his shirt, flashing a gun. The group then robbed the people in Daniel's car, ordered them out, and drove away in Daniel J.'s car. (Flores I, supra, G048666.)
A jury convicted Flores of conspiracy to commit murder (count 1), attempted murder (counts 2 &3), carjacking (count 4), second degree robbery (count 5), and street terrorism (count 6). The jury also found that Flores committed the attempted murders willfully, deliberately, and with premeditation; that Flores committed counts 1 through 5 for the benefit of, at the direction of, and in association with a criminal street gang; and that in committing counts 1 through 3, Flores was a gang member who vicariously discharged a firearm and caused great bodily injury.
The trial court found prior conviction allegations to be true and sentenced Flores to 55 years to life in prison. This court affirmed the judgment in Flores I.
In 2022, after the enactment of section 1170.95 (later renumbered section 1172.6), Flores filed a petition for resentencing. After reviewing the moving papers, which included the information, abstract of judgment, jury instructions, and verdict forms, the trial court denied Flores's petition. The court reasoned that Flores's conviction for conspiracy to commit murder "specifically required the jury to find he acted with the intent to kill," so he was ineligible for resentencing as a matter of law.Flores filed a timely notice of appeal.
The only case cited in the trial court's statement of decision is an unpublished case by this court (People v. Figueroa (Sept. 14, 2022, G060017) [nonpub. opn.]), which the trial court described as "recently decided, yet unpublished." We remind the court and all litigants that, subject to certain exceptions not relevant here, California Court of Appeal opinions that are "not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action." (Cal. Rules of Court, rule 8.1115(a).)
DISCUSSION
1. Legal Background
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) limited the scope of the felony-murder rule and eliminated NPC liability for murder as it applies to aiding and abetting. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The bill's stated purpose was "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); see § 189, subd. (e) [amending felony-murder rule]; § 188, subd. (a)(3) [amending NPC doctrine].)
The Legislature later passed Senate Bill No. 775 (2021-2022 Reg. Sess.), which extended these changes to "persons who were convicted of attempted murder or manslaughter under a theory of felony murder [or] the [NPC] doctrine" so that such individuals "are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1, subd. (a).)
The statutory changes include a procedure for those convicted under the former laws governing murder, attempted murder, and manslaughter to seek resentencing or to have their conviction vacated if their conduct did not constitute murder or attempted murder as redefined under current law. (§ 1172.6; Lewis, supra, 11 Cal.5th at pp. 957, 959.) If a petitioner makes a prima facie showing, the trial court is required to issue an order to show cause. (§ 1172.6, subd. (c); see id., subd. (d) [describing requirements for evidentiary hearing].)
"In determining whether the petitioner has made a prima facie case for relief . . ., the trial court's inquiry is limited"; it must accept "the petition's factual allegations as true [and] make[] a "'"preliminary assessment"'" whether the petitioner would be entitled to relief if those allegations were proven." (People v. Lopez (2022) 78 Cal.App.5th 1, 13 (Lopez).) The court may not reject the petitioner's factual allegations on credibility grounds, engage in factfinding, weigh the evidence, or exercise any discretion, unless the record contains facts refuting the petition's allegations, in which case the court may make a credibility determination adverse to the petitioner. (Lewis, supra, 11 Cal.5th at p. 971.) The prima facie bar is '"very low."' (Id. at p. 972.)
A prima facie showing is not made if the record of conviction demonstrates as a matter of law that the petitioner is ineligible for relief-i.e., "if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that (1) the petitioner was the actual killer; or (2) the petitioner was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; (3) the petitioner was a major participant in the underlying felony and acted with reckless indifference to human life; or (4) the petitioner acted with malice aforethought that was not imputed based solely on participation in a crime." (Lopez, supra, 78 Cal.App.5th at p. 14.)
An order denying a resentencing petition on the ground that the defendant failed to make a prima facie case for relief is an appealable postjudgment order. A determination that a petitioner is ineligible for relief as a matter of law is a legal conclusion, which we review de novo. (Lopez, supra, 78 Cal.App.5th at p. 14.)
2. Analysis
Flores argues the trial court improperly denied his resentencing petition after he made a prima facie showing under section 1172.6. We disagree.
The record of conviction establishes Flores was convicted of conspiracy to commit murder, among other crimes. A defendant convicted of conspiracy to commit murder is not eligible for resentencing under section 1172.6, because a conviction for conspiracy to commit murder necessarily requires the trier of fact to find an intent to kill. (People v. Medrano (2021) 68 Cal.App.5th 177, 182-186 (Medrano) [defendant's conviction for conspiracy to murder precluded relief under section 1170.95 as a matter of law because it showed the jury found defendant had specifically intended to commit first degree murder]; see People v. Beck and Cruz (2019) 8 Cal.5th 548, 642 ["Conspiracy to commit murder may be based only on express malice, i.e., an intent to kill"; "conspiracy to commit murder may not be based on a theory of implied malice"].)
In Medrano, the petitioner was a nonshooter participant in a drive-by shooting and was convicted of first degree murder and conspiracy to commit murder. (Medrano, supra, 68 Cal.App.5th at p. 179.) The jury was instructed "it could convict [the petitioner] of conspiracy to commit first degree murder only if it found he had acted 'with the specific intent to agree to commit the public offense of first degree murder and with the further specific intent to commit such offense."' (Id. at p. 184.) After acknowledging this instruction, the Court of Appeal found the record of conviction established the petitioner specifically intended to kill the victim, and thus was ineligible as a matter of law for resentencing. (Id. at pp. 184-186.)
The same is true here. Among other instructions, the jury was given CALCRIM No. 563 on conspiracy to commit murder, which stated in part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intended to agree and did agree with Andrew Vallejo Chavez and/or Yasmin Ramos to intentionally and unlawfully kill; [¶] 2. At the time of the agreement, the defendant . . . intended that one or more of them would intentionally and unlawfully kill; [¶] . . . [¶] The People must prove that the members of the alleged conspiracy had an agreement and intent to commit murder." (Italics added.) The jury was also given CALCRIM No. 251 on specific intent, which stated in part: "For you to find a person guilty of the crime[ ] of conspiracy to commit murder as charged in Count 1, . . . that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state." (Italics added.)
These instructions, coupled with Flores's conviction for conspiracy to commit murder, establish that the jury found Flores specifically intended to kill. (Medrano, supra, 68 Cal.App.5th at p. 184 [because the jury was instructed it could convict the defendant of conspiracy to commit murder only if it found he had acted '"with the specific intent"' to murder, "the conspiracy conviction shows that the jury found appellant had specifically intended to commit first degree murder"].)
Flores fails to address the Medrano case in either his opening or reply brief, and instead contends his conspiracy conviction is not controlling because the jury instructions, coupled with the gang expert's testimony as quoted in Flores's opening brief and the prosecutor's argument, left open the possibility that the jury imputed an intent to kill based on Flores's participation in the assault. We are not persuaded. We see nothing in the instructions negating the express malice requirement for the conspiracy charge or otherwise suggesting Flores could be convicted for conspiracy under an imputed malice theory. The jury is presumed to have followed the instructions given (People v. Chhoun (2021) 11 Cal.5th 1, 30), which, as noted above, required the jury to find an intent to kill in order to convict for conspiracy.
Flores quotes the prosecutor as saying, "A conspiracy can be implied or express, that is if one individual arms himself with a loaded firearm and they drive around looking for rival gang members, that is an implied agreement to commit murder." And further that "when you plan to shoot somebody, . . . when you pick . . . a loaded firearm, and you drive around as a gang member and you look for other gang members to shoot, your intent is to kill."
Because Flores was convicted of conspiring to murder the same victims he attempted to murder, and because that conspiracy conviction required the jury to find he had an intent to kill, Flores could still be found guilty of attempted murder under current law. He is therefore ineligible for resentencing as a matter of law.
DISPOSITION
The postjudgment order denying Flores's petition is affirmed.
WE CONCUR: O'LEARY, P. J. MOTOIKE, J.