Opinion
F085637
12-21-2023
THE PEOPLE, Plaintiff and Respondent, v. NOEL PONCE GALVAN, Defendant and Appellant.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF102054-02, Melinda Myrle Reed, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2003, appellant and defendant Noel Ponce Galvan (defendant) was convicted after a jury trial of premeditated attempted murder, robbery, and residential burglary, with gang enhancements. He was sentenced to 16 years plus 15 years to life.
In 2022, defendant filed a petition for resentencing under Penal Codesection 1172.6 petition. The trial court found his petition stated a prima facie case and set an evidentiary hearing. At the hearing, the parties submitted the matter on the transcript of his jury trial. The court stated it had reviewed the entirety of the transcript and found beyond a reasonable doubt that defendant was convicted of premeditated attempted murder as a direct aider and abettor who acted with the intent to kill, and denied the petition.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Defendant filed a supplemental brief and raises several claims of error. We address his contentions, independently review the record, and find the trial court's conclusions are supported by substantial evidence and affirm the denial of his petition.
In support of his petition for resentencing before the trial court, defendant filed this court's nonpublished opinion in People v. Galvan (July 25, 2005, No. F044500), that affirmed the judgment in his direct appeal. In their opposition, the People filed the entirety of the reporter's transcript from defendant's jury trial. After finding a prima facie case, the court granted defense counsel's motion to take judicial notice of its records from defendant's jury trial for purposes of the evidentiary hearing. noted, both parties submitted the matter on the trial transcript, and the court denied the petition based on the transcript. The following facts are summarized from both our prior opinion and the transcript of defendant's jury trial, which is part of the instant appellate record.
"At about 11:00 o'clock one night, six members of an Orosi gang called the Big Time Locos crossed the highway in front of the house where the victim Albert Contreras lived with a man he knew as Julia. (His real name was Jose Sanchez.) Five of the gang members were known by the monikers Rafa, Pulga, Funi, Camello, and Chuchi.
Defendant was Chuchi. (The moniker of the sixth member, who was defendant's brother, does not appear in the record.) Dressed in dark clothes, the six members crossed over to the house in groups of two. They knocked on the door and asked to come in."
"Contreras was acquainted with some of the six, having sold them drugs, and let them in the house to relax on previous occasions. Even so, he hesitated before allowing them to enter this time. Then he relented because, as he testified, 'it was late at night and they wanted to party, and I felt kind of bad for them because most of the time, you know, their parents would lock their doors on them.' The six came in and sat down in the living room. Contreras and Sanchez served them beer."
"After about an hour, Contreras asked Rafa to come into his bedroom while Sanchez stayed in the living room with the others. Rafa and the victim lay on the bed and smoked methamphetamine while a pornographic video played on the television. Rafa and the victim were alone together for about half an hour. Meanwhile, the other gang members also smoked methamphetamine."
"Pulga and Camello then entered the bedroom. One of them placed an object against the back of Contreras's head and said it was a gun. Contreras was forced onto the floor and his hands were tied behind his back with an extension cord. At some point, the remaining gang members entered the bedroom. Over a period of three to four hours, they took turns kicking Contreras, demanding that he disclose the location of hidden drugs and money and threatened to kill him. Contreras had no hidden drugs or money. The gang members ransacked the house looking for them."
Contreras testified defendant was one of the six people who were at his house on the night of the incident. Defendant entered the bedroom and he "would take turns on beating ... and threatening [Contreras]." Contreras testified defendant participated in "torturing me and . . . keeping an eye to make sure that I wasn't getting up."
"At about dawn, one of the gang members stabbed Contreras 30 to 40 times in the back with a knife as he lay bound on the floor. Sanchez was brought into the bedroom. His face had been beaten, and his hair had apparently been cut, as evidenced by a pair of scissors found in the living room with strands of his hair on them. The six gang members left the house carrying items of Contreras's property, including electronic equipment, jewelry, and a jar filled with change. Defendant carried a stereo out."
"After the gang members left, Contreras was able to stand and free his hands from the extension cord. He walked across the road to a bakery, where someone called an ambulance. Contreras underwent surgery and was hospitalized for eight days. He suffered a punctured lung and a lacerated kidney. His recovery took a year."
"Before trial in this case, Contreras testified in a related case. Shortly afterward, the house (which he no longer lived in) was burned down."
Detective Mario Martin testified Contreras positively identified defendant from a photographic lineup as one of the men who was in his house that night. Contreras told Martin that defendant was present "during this whole process. He was one of the individuals that did the ransacking and took items from the residence," and periodically went into the bedroom and demanded things from Contreras.
In the defense case, defendant's sister testified to an alibi, that he was home with her at the time of the incident. In rebuttal, a deputy testified he previously interviewed defendant's sister; at that time, she said she had not seen defendant since the night before the incident.
PROCEDURAL BACKGROUND
On February 11, 2003, an information was filed in the Superior Court of Tulare County charging defendant with count 1, premeditated attempted murder of Contreras (§§ 664, 187, subd. (a)); count 2, assault with a deadly weapon and by force likely to produce great bodily injury on Sanchez (§ 245, subd. (a)(1)); counts 3 and 4, first degree residential robbery of, respectively, Contreras and Sanchez (§ 211); and count 5, first degree residential burglary (§§ 459, 460), with great bodily injury, firearm, and gang enhancements.
Trial
On May 19, 2003, defendant's jury trial began. The special allegations originally charged in the information against defendant-his alleged personal use of a firearm and infliction of great bodily injury-were not submitted to the jury. As discussed below, the jury was instructed on attempted murder based on both direct aiding and abetting, and the natural and probable consequences doctrine.
The Prosecution's Closing Argument
In closing argument, the prosecutor did not assert that defendant used the knife on the victim, but argued he was guilty of attempted murder of Contreras as an aider and abettor. The prosecutor asserted the six men entered the house and "acted together" with "the same frame of mind." Contreras testified that defendant "at the very least" prevented Sanchez from helping Contreras during the assault, that he heard defendant's voice, identified him as one of the men who went into the bedroom and kicked and assaulted him, and defendant went through the house and took Contreras's property. Defendant's conduct showed he was an aider and abettor. "[I]t's submitted to you folks those six people went there with nothing but the intent to get drugs and use drugs from ... Contreras. And they were going to get it in any way they c[ould]. So when they went to that house it is submitted to you folks that all six of them already had it in mind." The men ran around the house looking for drugs and money and "[w]hen they didn't find it, they thought what the heck."
The prosecutor argued the men told Contreras that they would kill him if he did not give them what they wanted. "Keep in mind this whole time ... defendant is running in and out of the house. They are all coming and going and clearly knowing what's being said and what's being threatened, and that's going on. So he is directly a party to that attempted murder in that regard. Not just because he is involved in this conspiracy to go there, but also because what he witnesses and what he was assisting them to do." Defendant and the other men acted with premeditation because "nearly three hours went by before the victim was actually stabbed."
In closing argument, defense counsel argued the prosecution failed to prove defendant's guilt beyond a reasonable doubt because Ponce and Sanchez did not testify, the jurors were being asked to convict defendant based on their imagination rather than any evidence, defendant did not stab Contreras, and there was no evidence that he did anything to Sanchez.
Convictions and Sentence
On May 21, 2003, the jury found defendant guilty of count 1, premeditated attempted murder of Contreras; count 3, first degree residential robbery of Contreras; and count 5, first degree residential burglary, with the gang enhancements found true. He was found not guilty of the two charges based on Sanchez: count 2, assault with a deadly weapon, and count 4, robbery.
On October 15, 2003, the trial court denied defendant's motion for a new trial. As to count 3, defendant was sentenced to the upper term of six years, plus 10 years for the attached gang enhancement; and a consecutive term of life in prison with a minimum parole eligibility period of 15 years for count 1. The terms for count 5 and the remaining enhancements were stayed.
Direct Appeal
In People v. Galvan (July 25, 2005, No. F044500), this court affirmed the judgment of conviction in defendant's direct appeal. We rejected defendant's argument that the premeditation finding for attempted murder was not supported by substantial evidence. "[A] reasonable jury could infer that the six gang members came to their drug dealer's house to take advantage of his drugs and hospitality. They would then steal what they hoped would be a significant stash of drugs and drug money and kill him, at least if they were dissatisfied with the results of the robbery. Alternatively, the jury could reasonably infer that the perpetrators developed a plan to murder Contreras after they were inside his house. In sum, the evidence was sufficient to prove that defendant was guilty of attempted willful, deliberate, and premeditated murder."
We also held the trial court was not required to instruct on attempted voluntary manslaughter as a lesser included offense, the gang evidence was properly admitted, the findings on the gang enhancements were supported by substantial evidence, and there were no sentencing errors. We ordered the abstract of judgment amended to clarify the nature of the indeterminate term for attempted murder, and otherwise affirmed.
PETITION FOR RESENTENCING
On March 8, 2022, defendant filed, in propria persona, a petition for resentencing and requested appointment of counsel. Defendant filed a supporting declaration that consisted of a preprinted form where he checked boxes that he was eligible for resentencing because he could not presently be convicted of attempted murder based on the changes made to sections 188 and 189, effective January 1, 2019.
Defendant also filed, in propria persona, separate points and authorities and a declaration, that he did not try to murder Contreras or Sanchez, or plan with anyone to commit a murder. He asserted his petition stated a prima facie case because he was found not guilty of assault with a deadly weapon, he was not alleged to have personally used a deadly weapon, and the trial evidence did not support the gang enhancement.
Defendant argued his petition was also supported by the probation report's summary of a pretrial statement from Rafael Ponce, another suspect, who allegedly said defendant was not involved in the assault on the victims.
Ponce did not testify at trial. The probation report contains a hearsay summary of the police reports from the investigation. According to this summary, Ponce was interviewed and initially denied any knowledge or involvement in the crime. Ponce subsequently said Sandoval and Jimenez were in the bedroom with Contreras and demanded his money, Sandoval kicked Contreras, Jimenez stabbed Contreras multiple times with a knife, Contreras yelled in pain, Sanchez tried to enter the bedroom to help him, and defendant and the other suspects held back Sanchez and prevented him from helping Contreras.
The court appointed counsel to represent defendant. Thereafter, the People filed opposition to defendant's petition.
The Trial Court's Prima Facie Finding
On June 14, 2022, the court found defendant's petition stated a prima facie case for resentencing based on the jury instructions, and set the matter for an evidentiary hearing.
The prosecution subsequently filed a motion to dismiss the petition and argued the trial court's prima facie determination was erroneous. The court denied the motion.
EVIDENTIARY HEARING
The People's Trial Brief
On November 23, 2022, the People filed a trial brief, attached the entirety of the reporter's transcript from defendant's jury trial as a supporting exhibit, and argued the trial court could consider the transcript to rule on the petition at the evidentiary hearing. The People summarized Contreras's trial testimony about defendant's actions and asserted that evidence showed defendant was guilty beyond a reasonable doubt as a direct aider and abettor who acted with the intent to kill.
The People also requested the court to consider the transcript of Ponce's pretrial tape-recorded statement, and argued that Ponce implicated defendant in the attempted murder. The People argued the transcript of Ponce's pretrial statements was admissible because when defendant previously filed a petition for writ of habeas corpus, he included the transcript of Ponce's statement in support of his petition, and the hearsay statements in the transcript were admissible for the truth of the matter as adoptive admissions by defendant and declarations against defendant's penal interest.
The People attached the transcript of Ponce's pretrial interview in support of its motion. According to the transcript, Ponce said he went to Contreras's house with defendant and four other men with the intent to rob and murder Contreras. The men had spent hours planning the details of how they would commit the robbery and murder, and they retrieved a loaded shotgun from defendant's residence before they went to Contreras's house. Ponce stated two of his associates beat Contreras in the bedroom. When Sanchez tried to check on Contreras, defendant attacked Sanchez to stop him. Ponce said defendant held Contreras and Sanchez at gunpoint as the robbery was taking place, and when Sanchez was tied up on the floor alongside Contreras. Ponce said defendant was present with the shotgun when both victims were beaten. The men thought both victims were dead when they ran away to defendant's house.
The Trial Court's Hearing
On January 24, 2023, the court conducted the evidentiary hearing on defendant's petition.
Exclusion of Ponce's Pretrial Interview
First, the court denied the People's motion to introduce the transcript of Ponce's pretrial interview for the truth of the matter. The court held the transcript was not admissible as either an adoptive admission by defendant, or a declaration against defendant's penal interest. The court noted that while defendant filed the transcript as part of his prior habeas petition, defendant did not rely on these statements from Ponce for the truth of the matter, but instead submitted another declaration from Ponce that refuted his original allegations about defendant's involvement.
The Trial Court's Denial of the Petition
After the trial court excluded Ponce's statements, the prosecutor submitted the matter on the pleadings and the trial transcript. Defense counsel also submitted the matter on the trial transcript.
The court stated it had fully reviewed the transcript from defendant's jury trial, made lengthy findings based on that transcript, and denied the petition.
"The testimony shows that ... defendant and five fellow gang members went to the victim's home together to take his drugs and money by force, including the taking of the victim's life. The victim was the gang members' drug dealer.
"The victim was put on the floor of his bedroom. His hands were tied behind his back with an extension cord, and one of . . . defendant's [codefendants] put what the victim thought was a gun to the back of the victim's head.
"All the perpetrators, including ... defendant, participated in assaulting the victim by kicking, beating, and threatening him. The victim specifically testified that the defendants took turns beating and threatening him. The threats included killing the victim while making demands for hidden drugs and money. The victim was ultimately stabbed 30 to 40 times in the back three to four hours after the initial assault began.
"As noted specifically by the appellate court at [p]age 3 of their opinion: 'Defendant was among those who took a turn torturing Contreras and keeping an eye to make sure he wasn't getting up, according to the victim's testimony.'
"The defendant and his cohorts eventually left the house together taking several items of [the] victim's property. The defendant was personally seen carrying out a stereo.
"As such, I find the evidence establishes beyond a reasonable doubt that... defendant was personally fully engaged in the attempted murder of the victim, knew the other perpetrators intended to commit the crime, and personally intended to aid and abet the attempted murder of the victim. Said another way, defendant specifically intended to and did, in fact, aid, facilitate, promote, encourage, and instigate the perpetrator's commission of the crime of attempted murder.
"Furthermore, I find beyond a reasonable doubt defendant committed the attempted murder willfully, deliberately, and with premeditation. There is evidence of a prior relationship between the defendant and the victim and a motive to kill the victim if he did not reveal the location of his money and drugs. Moreover, as pointed out by the appellate court, there is evidence of planning activity before the attempted killing in that the victim testified he was bound and beaten for several hours before he was ultimately stabbed numerous times.
"In sum, defendant is guilty beyond a reasonable doubt of attempted first degree murder as a direct aider and abettor who had the specific intent to kill the victim willfully, deliberately, and with premeditation."
On January 24, 2023, defendant filed a timely notice of appeal.
DISCUSSION
I. Delgadillo/Wende Brief
As noted above, appellate counsel filed a brief with this court pursuant to Delgadillo and Wende. The brief also included counsel's declaration that defendant was advised he could file his own brief with this court. This court sent defendant an order that, pursuant to Delgadillo, the appeal would be dismissed as abandoned if he failed to submit a letter brief within 30 days. Defendant timely filed a supplemental brief with this court in response to our Delgadillo order, raising several contentions about the trial court's findings at the evidentiary hearing and the denial of his petition for resentencing. We address his arguments, independently review the record, find no arguable issues, and affirm the trial court's order.
II. Senate Bill Nos. 1437 and 775
We begin with the applicable statutes. "Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) [(Senate Bill 1437)] amended the felony-murder rule by adding section 189, subdivision (e). [Citation.] It provides that a participant in the qualifying felony is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.] The Legislature also amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People v. Strong (2022) 13 Cal.5th 698, 707-708.)
"Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended," initially codified in former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708; People v. Lewis (2021) 11 Cal.5th 952, 959.) The initial version of former section 1170.95 permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by [Senate Bill 1437]." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) made substantive amendments to former section 1170.95. (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) On June 30, 2022, the statute was renumbered as section 1172.6 without further substantive changes. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)
As relevant to this case, section 1172.6, subdivision (a) states that a person convicted of "attempted murder under the natural and probable consequences doctrine" may file a petition with the court that sentenced the petitioner to have the petitioner's attempted murder conviction vacated and to be resentenced, where the petitioner "could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
"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. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).) The jury instructions are part of the record of conviction and may be reviewed to make the prima facie determination. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1252; People v. Offley (2020) 48 Cal.App.5th 588, 599.)
The Evidentiary Hearing
"Once a petitioner establishes a prima facie case for relief and the superior court issues an order to show cause, the matter proceeds to an evidentiary hearing at which it is the prosecution's burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. [Citations.] If the superior court finds beyond a reasonable doubt that the petitioner is guilty of murder [or attempted murder] notwithstanding the amendments to sections 188 and 189, the petitioner is ineligible for relief under section 1172.6." (People v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).)
"At the hearing to determine whether the petitioner is entitled to relief .., [t]he admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens...." (§ 1172.6, subd. (d)(3).)
At the evidentiary hearing, the trial court may make factual findings and credibility determinations, and weigh evidence. (People v. Harden, supra, 81 Cal.App.5th at p. 51.) "Although the parties may offer new or additional evidence to meet their respective burdens, section 1172.6, subdivision (d)(3) does not contemplate a whole new trial on all the elements of murder. [Citation.] Rather, '[t]he retroactive relief provided by [section 1172.6] is a legislative "act of lenity" intended to give defendants serving otherwise final sentences the benefit of ameliorative changes to applicable criminal laws and does not result in a new trial or increased punishment.' [Citations.] Thus, the focus at the evidentiary hearing phase of an 1172.6 petition is 'on evidence made relevant by the amendments to the substantive definition of murder,' which, in the context of section 188, requires 'the prosecution to prove that all principals to a murder [or attempted murder] acted with malice aforethought.'" (Vargas, supra, 84 Cal.App.5th at p. 952.)
Review of the Trial Court's Ruling
"While the superior court acts as an independent fact finder in determining whether the People have met their burden, on appeal, the reviewing court applies the substantial evidence standard to the superior court's findings. [Citation.] Under this familiar standard,' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citations.] Substantial evidence also' "includes circumstantial evidence and any reasonable inferences drawn from that evidence." '" (Vargas, supra, 84 Cal.App.5th 943, 951.)
"In conducting our substantial evidence review, we begin with the presumption that the evidence was sufficient to support the trial court's ruling. 'Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there was no hypothesis whatever upon which there was substantial evidence to support the verdict.'" (Vargas, supra, 84 Cal.App.5th 943, 952.) "We must accept factual inferences in favor of the trial court's ruling. [Citation.] Where [a defendant] urges contrary and conflicting inferences, then, we must reject them." (People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) III. Defendant's Procedural Contentions
In his supplemental letter brief, defendant raises several procedural challenges to the trial court's ruling at the evidentiary hearing.
A. The Trial Court Did Not Rely on the Prior Appellate Opinion
First, defendant argues that when the trial court denied his petition at the evidentiary hearing, it erroneously relied on the factual statement in this court's prior nonpublished opinion that affirmed his convictions in his direct appeal. Defendant argues such reliance violated section 1172.6, subdivision (d)(3), which only permits the trial court to rely on the procedural history from a prior appellate opinion.
At the evidentiary hearing, however, the entirety of the reporter's transcript from defendant's jury trial was before the court, and both parties submitted the matter on that record. While the trial court referred to the prior appellate opinion, the court stated it was denying the petition based on the trial record. (See, e.g., People v. Wilson (2023) 90 Cal.App.5th 903, 906; People v. Clements (2022) 75 Cal.App.5th 276, 293.)
In a related argument, defendant argues his trial counsel was prejudicially ineffective at the evidentiary hearing because he failed to object to the trial court's alleged reliance on the preliminary hearing and trial transcripts. The record refutes this argument. The court properly relied upon the transcripts from defendant's jury trial when it denied his petition, and there is no evidence that the court relied on the preliminary hearing transcripts.
B. Exclusion of Ponce's Pretrial Statements
Defendant argues that at the evidentiary hearing, the trial court should have excluded Ponce's pretrial statements and any extraneous evidence that the prosecution attempted to introduce under Evidence Code section 115.
The record again refutes such an argument. As set forth above, the People moved to introduce Ponce's pretrial statements against defendant at the evidentiary hearing. Prior to addressing the evidence, however, the trial court denied the People's motion, excluded Ponce's statements, and did not consider any extraneous evidence when it ruled upon defendant's petition. The trial court made its factual findings and denied the petition solely based upon the record from defendant's jury trial, which is permissible at an evidentiary hearing. (§ 1172.6, subd. (d)(3).)
C. The Prosecutor's Arguments at the Evidentiary Hearing
Defendant next argues that at the evidentiary hearing, the prosecutor committed misconduct because he used the words "extortion" and "tortured" when he argued the petition lacked merit, and his arguments were improper since defendant was not charged with those offenses.
At the beginning of the hearing on the petition, the trial court first considered whether to grant the People's motion to introduce Ponce's pretrial statements, and heard arguments from the parties. The prosecutor argued Ponce's statements were admissible because he described an "extortion" plan. Defense counsel objected to this argument and asserted Ponce's hearsay statements were inadmissible. The trial court agreed and excluded Ponce's statements.
After excluding Ponce's statements, the trial court conducted the evidentiary hearing. The parties submitted the matter on the transcripts from defendant's jury trial, and the court heard their arguments. The prosecutor argued defendant's petition lacked merit because he was part of a plan to extort, torture, and murder the victim. Defense counsel replied that they could not relitigate the matter, the question was whether defendant could be convicted under the amended law, and the petition should be granted.
While defendant was not charged with "torture," the prosecutor restated the exact word used by Contreras when he testified at the jury trial about what happened to him- that defendant participated in "torturing" him. In any event, defense counsel objected to the prosecutor's argument, and the trial court did not adopt the prosecutor's argument when it denied the petition. Instead, the court found the evidence showed beyond a reasonable doubt that defendant was convicted as a direct aider and abettor who acted with premeditation and the intent to kill. Thus, to the extent the prosecutor's argument was erroneous, defense counsel objected, and the court did not rely on any allegations that defendant committed uncharged criminal acts of extortion and torture when it denied the petition.
D. The Trial Court's Findings
Defendant asserts that when the trial court denied his petition, it did so "from a cold record to support its ruling, when in fact, under current law ... now [section] 1172.6[, subdivision ](3)(d)[sic], requires a finding that there is substantial evidence to support a conviction for ... attempted murder, and the prosecution has the burden of proving this beyond a reasonable doubt."
As we have explained, the trial court properly relied on the reporter's transcript from defendant's jury trial, since it "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed." (§ 1172.6, subd. (d)(3), italics added.) More importantly, the trial court was well aware of the burden of proof at the evidentiary hearing, and stated that it found "defendant is guilty beyond a reasonable doubt of attempted first degree murder as a direct aider and abettor who had the specific intent to kill the victim willfully, deliberately, and with premeditation."
E. Ineffective Assistance of Counsel
Defendant asserts his appointed appellate counsel was prejudicially ineffective because he filed a Wende brief in this appeal. An appellate counsel does not render ineffective assistance by filing a Wende brief because "the appellate court ... review[s] the entire record to determine whether there is any arguable issue." (People v. Kelly (2006) 40 Cal.4th 106, 119.) Counsel complied with the procedures set forth in Delgadillo and Wende in filing the opening brief. Defendant responded to this court's Delgadillo order and filed a supplemental brief.
While Delgadillo grants discretion for this court to review the record, we have addressed the issues raised in defendant's supplemental brief and furthermore exercised our discretion to conduct our own independent review of the record. As we further explain, there are no arguable issues and the trial court's order that denied his petition for resentencing is supported by substantial evidence. Appellate counsel was not ineffective for filing a Delgadillo/Wende brief.
IV. Attempted Murder and Aiding and Abetting
At the evidentiary hearing, the trial court found beyond a reasonable doubt that defendant was convicted of premeditated attempted murder as a direct aider and abettor. Defendant contends the court's findings are not supported by substantial evidence. We briefly review the applicable legal principles on attempted murder and aiding and abetting.
A. Attempted Murder
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Booker (2011) 51 Cal.4th 141, 177-178; People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) "Intent to unlawfully kill and express malice are, in essence, 'one and the same.' " (People v. Smith (2005) 37 Cal.4th 733, 739.) Thus, while murder may be premised on a conscious disregard for life, attempted murder requires the specific intent to kill. (Ibid.) Implied malice cannot support a conviction of attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328.) In addition, the crime of attempted murder is not divided into degrees, but the prosecution may seek a finding that the attempted murder was willful, deliberate, and premeditated for purposes of sentence enhancement. (Smith, at p. 740.)
B. Aiding and Abetting
"Generally, a defendant may be convicted of a crime either as a perpetrator or as an aider and abettor. [Citation.] An aider and abettor can be held liable for crimes that were intentionally aided and abetted (target offenses); an aider and abettor can also be held liable for any crimes that were not intended, but were reasonably foreseeable (nontarget offenses). [Citation.] Liability for intentional, target offenses is known as 'direct' aider and abettor liability; liability for unintentional, nontarget offenses is known as the '" 'natural and probable consequences' doctrine." '" (In re Loza (2018) 27 Cal.App.5th 797, 801, fn. omitted.)
As explained above, Senate Bill 775 "clarified Senate Bill 1437 by amending [former] section 1170.95 to make clear the natural and probable consequences doctrine no longer supplies accomplice liability to attempted murder." (People v. Sanchez (2022) 75 Cal.App.5th 191, 193.) The amendments, however, did not alter the law regarding the criminal liability of direct aiders and abettors "because such persons necessarily 'know and share the murderous intent of the actual perpetrator.'" (People v. Offley (2020) 48 Cal.App.5th 588, 595-596; People v. Jenkins (2021) 70 Cal.App.5th 924, 931.) Direct aiding and abetting thus remains a valid theory of attempted murder. (People v. Coley (2022) 77 Cal.App.5th 539, 548.)
Under the direct theory, the prosecution "must show that the defendant acted '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.'" (People v. Gomez (2018) 6 Cal.5th 243, 279.) The direct aider and abettor's mental state "must be at least that required of the direct perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) "What this means here, when the charged offense and the intended offense-murder or attempted murder-are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, is that the aider and abettor must know and share the murderous intent of the actual perpetrator." (Ibid.)
C. Analysis
Defendant contends the trial court's findings were erroneous and not supported by substantial evidence because the jury was instructed on the natural and probable consequences doctrine, and that was the only theory relied upon by the prosecution.
The jury was instructed on the natural and probable consequences doctrine pursuant to an uncharged conspiracy theory, based on the perpetrator's commission of robbery or burglary, and that a member of a conspiracy was "not only guilty of a particular crime that to the defendant's knowledge his confederates agreed to and did commit, but is also liable for all the natural and probable consequences of any crime of a coconspirator to further the object of the conspiracy, even though that crime was not intended as part of the agreed upon objective and even though the defendant may not have been present at the time of the commission of the crime."
However, the jury was also instructed on direct aiding and abetting-that a person "aids and abets the commission or attempted commission of a crime when the person; one, with knowledge of the unlawful purpose of the perpetrator; and two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime; and three, by act, advice, promotes, encourages, instigates the commission of a crime."
Defendant further asserts the prosecutor's argument solely relied on the natural and probable consequences doctrine to seek a conviction. However, the prosecutor also relied on direct aiding and abetting, and argued defendant and his five associates entered the house and "acted together" with "the same frame of mind," kicked and assaulted Contreras, went through the house, and looked for his drugs and money. The prosecutor argued the suspects told Contreras that they would kill him if he did not give them what they wanted. "Keep in mind this whole time the defendant is running in and out of the house. They are all coming and going and clearly knowing what's being said and what's being threatened, and that's going on. So he is directly a party to that attempted murder in that regard." The prosecutor asserted defendant and his associates acted with premeditation because "nearly three hours went by before the victim was actually stabbed."
The court acknowledged the jury was instructed on the natural and probable consequences doctrine when it found defendant's petition stated a prima facie case and set the matter for an evidentiary hearing. At the evidentiary hearing, however, the trial court could move beyond the instructions and closing arguments, and was required to determine whether the prosecution proved beyond a reasonable doubt that defendant was convicted of premeditated attempted murder as a direct aider and abettor who acted with the intent to kill, and not based on the alternate theory of the natural and probable consequences doctrine.
The court's finding of direct aiding and abetting is supported by substantial evidence that defendant had knowledge of the unlawful purpose of his associates, and acted with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, and promoted, encouraged, or instigated the crime. Defendant and his five associates were members of the same gang. They visited Contreras at the house where he previously sold them drugs and allowed them to "hang out." On this night, however, two of the men placed an object believed to be a gun to the back of Contreras's head, forced him to the floor, and bound his hands behind his back. As the night continued, defendant and the other gang members entered the bedroom, took turns kicking Contreras, and demanded he disclose where he had hidden drugs and money in the house or they would kill him.
At the jury trial, Contreras testified defendant was in the bedroom and "would take turns on beating ... and threatening [Contreras]." Contreras testified defendant participated in "torturing me and . . . keeping an eye to make sure that I wasn't getting up." One gang member stabbed Contreras 30 to 40 times, and defendant and his associates left with property taken from the house. Contreras identified defendant from a photographic lineup as one of the men who was in his house that night, and testified defendant was present "during this whole process. He was one of the individuals that did the ransacking and took items from the residence," and defendant periodically went into the bedroom and demanded things from Contreras.
There is thus substantial evidence to support the trial court's finding that "defendant was personally fully engaged in the attempted murder of the victim, knew the other perpetrators intended to commit the crime, and personally intended to aid and abet the attempted murder of the victim. Said another way, defendant specifically intended to and did, in fact, aid, facilitate, promote, encourage, and instigate the perpetrator's commission of the crime of attempted murder," and he "had the specific intent to kill the victim willfully, deliberately, and with premeditation."
DISPOSITION
The trial court's order of January 24, 2023, finding beyond a reasonable doubt that defendant was a direct aider and abettor of premeditated attempted murder, is supported by substantial evidence, and his petition was properly denied. --------- Notes: [*] Before Hill, P. J., Detjen, J. and Pena, J.