Opinion
F085729
01-12-2024
THE PEOPLE, Plaintiff and Respondent, v. ALONZO RUBALCAVA GIL, Defendant and Appellant.
Vicki Hightower, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County. No. PCF359897 Antonio A. Reyes, Judge.
Vicki Hightower, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In May 2019, defendant Alonzo Rubalcava Gil pleaded no contest to attempted murder (Pen. Code, §§ 664, 187) and admitted enhancement allegations that he personally used a firearm during the commission of the offense pursuant to section 12022.53, subdivision (b), personally inflicted great bodily injury pursuant to section 12022.7, subdivision (a), and he suffered a prior prison term as described in section 667.5, former subdivision (b). (Undesignated statutory references are to the Penal Code.) In November 2022, he petitioned for relief from his attempted murder conviction under section 1172.6. The superior court denied the petition for relief, noting it took defendant's plea and defendant "was clearly the perpetrator who shot the victim. He was identified as the individual who shot the victim."
Defendant now appeals from the denial of his section 1172.6 petition for resentencing, asserting the record did not conclusively establish he was ineligible for relief. The People assert the record establishes defendant was prosecuted as the sole and actual perpetrator.
We agree with defendant that the order denying defendant's section 1172.6 petition must be reversed and the matter remanded for the court to issue an order to show cause and to hold further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Charges
In July 2018, defendant was charged with attempted murder (§§ 664, 187, subd. (a); count 1) with an allegation the attempted murder "was committed willfully, deliberately and with premeditation within the meaning of ... section 664(a)." It was also alleged as to this count that defendant "personally used" and "personally and intentionally discharged a firearm" within the meaning of section 12022.53, subdivisions (b) and (c), respectively, and that defendant's personal and intentional discharge of a firearm "proximately caused great bodily injury and death to C.M., within the meaning of ... Section[] 12022.53(d)." It was further alleged that count 1 "is punishable in the state prison for life" and sentencing is pursuant to section 186.22, subdivision (b)(5). Defendant was also charged with being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2). It was further alleged as to counts 1 and 2 that defendant had served two prior prison terms as described in section 667.5, former subdivision (b).
Preliminary Hearing Evidence
The preliminary hearing was held in June and July 2018, during which four officers testified. Detective Fernando Gomez testified he was called into work on December 13, 2017, to go speak to a victim of a shooting, C.M., at the hospital. He observed C.M. to have a gunshot wound in his hip area and a burn mark on his arm. The doctors told Gomez a CT scan revealed C.M.'s intestines had been hit, and they had to perform surgery to stop the bleeding. C.M. spoke with Gomez after surgery and stated he was going to sell marijuana to someone referred to as "D. Rub" "and he was shot. He initially stated he was shot by D. Rub."
Gomez showed C.M. three or four photographs after searching for names that began with the letter D and had the last name "Rubalcava," when Sergeant Richard Carrillo contacted Gomez with defendant's name-Alonzo Rubalcava Gil. Carrillo had obtained C.M.'s cellular phone and, during the investigation, it was brought to Carillo's attention there was a Snapchat image from the screenname of "D-rub" on it. A previous gang detective associated defendant's name with the moniker "D-rub" or "D-rubs."
Gomez looked up defendant on Facebook and showed him to C.M., who identified defendant as the shooter. Gomez also presented C.M. with a six-pack photographic lineup and C.M. positively identified defendant as the shooter again.
Two days later, Gomez took a more complete statement from C.M. regarding the events leading up to the shooting. C.M. reported "the suspect had attempted to give him a fake $100 bill." C.M. realized it was fake, refused to take it, and began walking away. The suspect began following C.M., and C.M.'s friend W.P. (a juvenile) told C.M. to run. C.M. ran up some stairs and then turned around and confronted the suspect; he grabbed hold of the suspect's gun, pushed it down, and was shot in the hip. C.M. reported to Gomez that he "got a good look at the suspect's face during that interaction with him." Later, Gomez testified C.M. identified "D. Rub" as the shooter in the second interview too.
Sergeant Wayne Martin testified he responded to the location of the shooting on December 13, 2017, and spoke with W.P. W.P. told him C.M. was supposed to meet someone identified as "D-rub" for a marijuana transaction. W.P. was standing back when C.M. approached a gray car; he then heard something about "fake money." W.P. saw the driver exit the gray car holding a black handgun. W.P. panicked and ran off. He encountered C.M. back at the apartment and C.M. was complaining he had been shot; there was bloody clothing on the floor. W.P. told C.M.'s girlfriend to call 911.
Martin also spoke with another juvenile, B.P., who was at the apartment that day. B.P. stayed in the apartment when C.M. and W.P. went outside. B.P. reported hearing a loud noise he described as a gunshot in close proximity. Within a few moments, C.M. returned to the apartment and said he had been shot.
Gomez spoke with C.M. again on December 27, 2017. C.M. explained he had previously sold marijuana to and had several contacts with D.R. (also referred to as "D.Rub"), who was later identified as defendant's cousin. D.R. normally would arrive in a white van but, on the day of the shooting, he showed up in a gray car, which C.M. thought was "weird." C.M. walked up to the car; he identified defendant as the driver and saw D.R. to the right of defendant.
Gomez took a statement about the shooting from the person identified as D.R. According to D.R., there were also other passengers in their car that night, but the passengers were not identified. D.R. stated defendant gave C.M. fake money and C.M. got mad and threw it back at him. Defendant chased C.M. and then D.R. heard a gunshot, but he did not see a gun. D.R. stated defendant had told him that he was a Norteno gang member. D.R. also stated the other passengers in the car had tattoos and looked like they were in a gang and they got out of the car when defendant did; D.R. was the only one who stayed back.
Gomez also testified about criminal street gangs and gang culture and specifically testified about the West Side Poros criminal street gang. He explained if someone disrespects a gang member, the gang member is expected to assault the individual or "do anything to get that respect."
Police seized items during a search of defendant's home, including four counterfeit $100 bills. A silver gray sedan was parked behind defendant's primary residence on the concrete in between a secondary residence. It matched the description of the suspect vehicle.
Plea
On May 8, 2019, the People agreed to amend count 1 to nonpremeditated attempted murder "for a triad of 5, 7, 9," to dismiss the section 667.5, subdivision (c) allegation as to count 1, and to stay the section 12022.53, subdivision (d) and section 667.5, former subdivision (b) prison prior enhancements. The People would also be adding a personal infliction of great bodily injury allegation pursuant to section 12022.7 for a term of three years that would be stayed, and the total term to be imposed would be 15 years in state prison. Defense counsel stipulated there was a factual basis for the plea based on the police reports and the preliminary hearing transcript. The People stated there was a factual basis for the plea based on the police reports, preliminary hearing transcript, and the medical records.
Defendant pleaded no contest to attempted murder and admitted the enhancement allegations that he personally used a firearm during the commission of the offense pursuant to section 12022.53, subdivision (b), personally inflicted great bodily injury pursuant to section 12022.7, subdivision (a) and he suffered a prior prison term as described in section 667.5, former subdivision (b). In June 2019, the court sentenced defendant to 15 years' imprisonment, composed of the low term of five years for the attempted murder conviction plus an additional and consecutive 10 years pursuant to section 12022.53, subdivision (b). The section 12022.7, subdivision (a) allegation and section 667.5, former subdivision (b) allegation were ordered stayed. The section 667.5, former subdivision (b) enhancement allegation was ordered stricken and dismissed by operation of law in June 2019.
Petition for Resentencing
On November 28, 2022, defendant filed a petition for resentencing pursuant to section 1172.6 (former § 1170.95). He averred a charging document had been filed against him that allowed the prosecution to proceed under a felony-murder theory, the natural and probable consequences doctrine, or other theory under which malice was imputed based solely on participation in the crime; at trial, he was convicted of murder, attempted murder, or manslaughter or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and he could not now be convicted of murder or attempted murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Sen. Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)). He also requested the appointment of counsel.
Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at that time, although prior changes had been implemented effective January 1, 2022. There is no dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the statute as section 1172.6.
The court set the matter for a resentencing hearing on December 20, 2022. The People filed a response to defendant's petition, asserting in part that at the time defendant entered his plea in May 2019, the law that invalidated the natural and probable consequences doctrine was already in effect, establishing his conviction did not rest on a theory of imputed malice. Thus, he was ineligible for relief as a matter of law. Said differently, they argued, defendant was not convicted under the natural and probable consequences doctrine because the changes to sections 188 and 189 were in effect at the time of his plea; thus, he pled "on still valid theories of liability that were based upon his own malice." They also asserted he was "convicted as the sole perpetrator in the attempt to murder C.M.," and he stipulated "the police reports, as well as the [p]reliminary hearing transcripts, and medical records, provided a factual basis for his plea." Accordingly, they argued "it is readily ascertainable that the defendant was the sole and actual shooter, and that the magistrate held him to answer the charges based on defendant's action with malice aforethought."
On February 2, 2023, the trial court held a hearing during which the People reiterated their argument that defendant "entered his plea after the enactment of the statute that eliminated natural and probable consequences; therefore, the [c]omplaint was ... lodged against him where he could become the victim of attempted murder based on natural and probable consequences doctrine." Defense counsel responded that defendant "was not afforded or the eligibility to afford himself to Senate Bill 1437 because it only dealt with homicide" and he was "charged with attempted homicide." Defense counsel argued defendant became eligible under Assembly Bill No. 775.
The court denied defendant's section 1172.6 petition for resentencing without issuing an order to show cause or holding an evidentiary hearing. The court noted it took defendant's plea and defendant "was clearly the perpetrator who shot the victim. He was identified as the individual who shot the victim." Defense counsel asserted the court could not "take any of that into consideration," it had "to go off of what's in the petition, treat it as a habeas petition, and the Court is very limited as to what the Court can and can't take into consideration at the prima facie stage." The People responded that the court "is mentioning the facts in regards to the fact that natural and probable consequences was not available at the time." The court then reiterated that the petition was denied.
DISCUSSION
Defendant now challenges the trial court's denial of his petition for resentencing, and we reverse the court's order and remand for further proceedings consistent with this opinion.
I. Senate Bill 1437 and Senate Bill No. 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2-3.)
Accordingly, section 188 now provides that, "[e]xcept 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." (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person 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 person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
The legislation also added section 1172.6, which provides a procedure by which defendants whose cases are final can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, § 4.) Initially, this section permitted those "convicted of felony murder or murder under a natural and probable consequences theory [to] 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 ...." (Stats. 2018, ch. 1015, § 4, subd. (a).) In Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775), effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure to defendants convicted of attempted murder or manslaughter under a now prohibited theory. The legislation also clarified some of the procedural requirements in the statute.
Pursuant to amended section 1172.6, upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).) "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).) If the petitioner has made such a showing that the petitioner is entitled to relief, the court "shall issue an order to show cause." (Ibid.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (Ibid.)
The trial court may look at the record of conviction to determine whether a petitioner has made a prima facie case for section 1172.6 relief, but the prima facie inquiry under subdivision (c) is limited. (People v. Lewis (2021) 11 Cal.5th 952, 970971.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 972.) "'[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citation.]" (Id. at p. 971.) "'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."' [Citations.]" (Ibid.)
II. Analysis
Defendant argues the record of conviction did not establish he was ineligible for relief as a matter of law. Rather, the court necessarily engaged in improper judicial factfinding at the prima facie stage when it denied defendant's petition based on its review of the facts contained in the transcript of the preliminary hearing. He argues, the portions of the preliminary hearing transcript that might establish defendant was the shooter were hearsay, and thus not part of the record of conviction or properly considered by the trial court. He also contends, he could have been prosecuted for attempted murder based on the now invalid theory of natural and probable consequences, noting Senate Bill 775 amended former section 1170.95 to expand the relief provided by that section to attempted murder prosecutions on January 1, 2022. He also asserts his plea of no contest to the personal use of a weapon and infliction of great bodily injury allegations does not render him ineligible for relief. He contends the court should have issued an order to show cause and held an evidentiary hearing, and the failure to do so violated his due process rights. The People disagree, arguing the record established defendant was ineligible for relief. He was the only person charged with the attempted murder; the parties stipulated the preliminary hearing transcript established a factual basis for the plea; the transcript "conclusively established" the victim was injured by the discharge of a firearm; and defendant admitted he personally used a firearm that caused great bodily injury as part of his plea establishing he was the "direct perpetrator." We conclude the record of conviction does not establish, as a matter of law, that defendant is ineligible for relief. Accordingly, the order denying his petition must be reversed.
Here, defendant pleaded guilty to a count of attempted murder. The elements of attempted murder are "specific intent to kill and the commission of a direct but ineffectual act towards accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) But under the former law, the specific intent to kill in an offense involving more than a single perpetrator acting alone could have been satisfied by the imputation of the perpetrator's intent to one who aids and abets the perpetrator in the target offense, of which the killing was a natural and probable consequence: indeed, section 1172.6 "applies by its terms ... to attempted murders based on the natural and probable consequences doctrine." (People v. Coley (2022) 77 Cal.App.5th 539, 548.) To be convicted of attempted murder under a natural and probable consequences theory, it is enough for the defendant to have intended to aid and abet the actual perpetrator in the commission of a target offense such as assault, so long as the actual perpetrator intended to kill and the attempted murder was the natural and probable consequence of the assault. (See People v. Montes (2021) 71 Cal.App.5th 1001, 1007.) If, however, the defendant was the sole and actual perpetrator of attempted murder, he is ineligible for relief under section 1172.6 as he would have necessarily harbored the intent to kill; it could not have been imputed to him from another. (See People v. Patton (2023) 89 Cal.App.5th 649, 657, rev. granted, June 28, 2023, S279670; see People v. Delgadillo (2022) 14 Cal.5th 216, 233 [affirming denial of resentencing petition because record was clear defendant was sole perpetrator and actual killer].)
Notably, defendant pleaded guilty to attempted murder after Senate Bill 1437's amendments to sections 188 and 189 became effective on January 1, 2019. However, the People do not argue, as they did below, that the timing of defendant's plea rendered him categorically ineligible for relief. And we note there was disagreement among appellate courts after Senate Bill 1437 went into effect as to whether the amendments enacted by sections 188 and 189 extended to attempted murder convictions based on the natural and probable consequences doctrine. The Supreme Court granted review in these cases, and they were pending before the court when the Legislature enacted Senate Bill 775 in October 2021. Senate Bill 775 became effective on January 1, 2022, and amended former section 1170.95 and "'[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; accord, People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) Thereafter, the Supreme Court transferred the pending cases about whether Senate Bill 1437's amendments extended to attempted murder convictions back to the appellate courts, in light of the amendments enacted by Senate Bill 775, without issuing an opinion on the disputed issue.
Here, the court's denial of the petition was based on its conclusion that defendant "was clearly the perpetrator who shot the victim" in that "[h]e was identified as the individual who shot the victim." But the court's conclusion that defendant was identified as the shooter appears to have been based upon hearsay evidence presented at the preliminary hearing. That is, the only witnesses at the preliminary hearing were four investigative officers; none of whom were eyewitnesses to the shooting. Accordingly, the only evidence that defendant was identified as the shooter was Detective Gomez's testimony about the statements from C.M., the victim who subsequently identified defendant in a photographic lineup. However, C.M. did not appear at the preliminary hearing.
Thus, the evidence at the preliminary hearing that implicated defendant as the shooter was introduced through the hearsay testimony of Gomez, which was introduced at that hearing pursuant to section 872, subdivision (b). As section 1172.6, subdivision (d)(3) specifically prohibits the use of hearsay evidence admitted under section 872, subdivision (b) during an evidentiary hearing to determine a petitioner's eligibility for resentencing, "we fail to see how such evidence could establish as a matter of law a petitioner's ineligibility for resentencing at the prima facie stage." (People v. Flores (2022) 76 Cal.App.5th 974, 988; accord, People v. Patton, supra, 89 Cal.App.5th at p.652, fn. 2 [disregarding testimony admitted at preliminary hearing under § 872, subd. (b)], rev. granted.) Furthermore, as we have previously held, though defendant stipulated that the preliminary hearing transcript provided a factual basis for his plea, "his stipulation that the transcript provided a factual basis for the plea is not a '"binding admission for all purposes,"'" such that it amounted to an admission of the particular facts therein. (Flores, supra, at p. 991; accord, People v. Rivera (2021) 62 Cal.App.5th 217, 235.)
Additionally, without more, defendant's bare admission of the enhancements for personal use of a deadly weapon (§ 12022.53, subd. (b)) and infliction of great bodily injury (§ 12022.7, subd. (a)) neither establishes he acted with the intent to kill nor refutes his contention he was convicted on a theory of imputed malice. As with pleading guilty to a criminal offense, a plea or admission of a sentencing enhancement is likewise deemed a judicial admission of only elemental facts necessary to the enhancement. (See People v. Westbrook (1996) 43 Cal.App.4th 220, 224; accord, Descamps v. United States (2013) 570 U.S. 254, 269-270.) Thus, here, the enhancements alleged under sections 12022.53, subdivision (b) and 12022.7, subdivision (a) did not establish as a matter of law that defendant acted with the requisite malice aforethought. (See People v. Offley (2020) 48 Cal.App.5th 588, 598 [§ 12022.53, subd. (d) enhancement does not establish malice aforethought]; see also People v. Davenport (2021) 71 Cal.App.5th 476, 485 [plea of no contest to personal use of a firearm under § 12022.5, subd. (a) does not preclude eligibility for relief under § 1172.6]; see generally In re Ferrell (2023) 14 Cal.5th 593, 604 [§ 12022.53, subd. (d) finding was not dispositive of whether defendant harbored malice].)
In sum, nothing in the record establishes as a matter of law that defendant was ineligible for relief; thus, the trial court erred in summarily denying his petition. Rather, defendant alleged in his petition that a charging document was filed against him which allowed the prosecution to proceed under a theory of felony murder, murder based on the natural and probable consequences doctrine, or other theory under which malice was imputed to a person based solely on that person's participation in a crime; he accepted a plea offer in lieu of a trial at which he could have been convicted of attempted murder; and that he could not presently be convicted of attempted murder because of the changes to sections 188 and 189. (See § 1172.6, subd. (a)(1)-(3).) The court was required to accept those allegations as true unless the facts in the record of conviction refuted them. (See People v. Lewis, supra, 11 Cal.5th at p. 971.) And here, the record of conviction does not conclusively establish defendant was ineligible for relief.
Accordingly, the order denying the petition must be reversed and the matter remanded with directions for the trial court to issue an order to show cause and, to the extent necessary, conduct an evidentiary hearing under subdivision (d) of section 1172.6. We express no opinion on the ultimate resolution of the petition.
DISPOSITION
The order denying defendant's petition for resentencing is reversed and the matter is remanded. The trial court is directed to issue an order to show cause and, to the extent necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).
[*] Before Levy, Acting P. J., Peña, J. and Snauffer, J.