Opinion
E079030
07-24-2023
THE PEOPLE, Plaintiff and Respondent, v. CHARLES GONZALEZ, Defendant and Appellant.
Charles Gonzalez, in pro. per.; and Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA900485. John Nho Trong Nguyen, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Charles Gonzalez, in pro. per.; and Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKINSTER ACTING P. J.
Defendant and appellant, Charles Gonzalez, filed a form petition for resentencing pursuant to Penal Code former section 1170.95, which the court denied. After defense counsel filed a notice of appeal, this court appointed counsel to represent defendant.
All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
Counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the case, requesting that this court independently review the record for error, and identifying one potentially arguable issue: whether the record conclusively establishes that defendant was ineligible for relief.
This court offered defendant the opportunity to file a personal supplemental brief, which he has done. Defendant contends (1) the court prejudicially erred in denying his petition without taking a waiver of his presence at the hearing; and (2) that he should be permitted to raise issues from his purported appeal from a resentencing hearing which occurred on January 17, 2014. We affirm.
"If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Delgadillo, supra, 14 Cal.5th at p. 232.)
I. FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of our prior nonpublished opinion from defendant's appeal from the judgment, which the People attached to their opposition to the petition, quoted at length therein, and of which they requested the court take judicial notice. (People v. Gonzalez (Sep. 5, 2013, E054599) [nonpub. opn.] (Gonzalez).) We take our factual recitation from Gonzalez. Defendant, in propria persona, filed a motion to augment the record. This court denied the motion as to most of the documents attached thereto. However, this court deemed defendant's motion a request for judicial notice as to the document attached at page four. This court reserved ruling on the matter for consideration with the appeal. We deny the request because defendant's prison incoming mail list between September 7, 2021, and April 4, 2023, is irrelevant to the issues raised on appeal.
Frank Marshall Martinez, defendant's codefendant, invited the victims to go with him to Las Vegas to gamble and hang out with girls. Defendant drove the vehicle, with Martinez as the passenger, to pick up the victims at the airport.
After leaving the airport, defendant drove up a dirt road on a mountain or hill, where he pulled over. Martinez turned around and pointed a gun at the victims. One of the victims ran toward an open field. Defendant got of the car and fired several shots before giving chase. The victim was hit. He was taken to the hospital and treated for a gunshot wound and fractured pelvis.
After defendant stopped shooting, the other victim fled from the car. Martinez got out of the car and fired several shots at the second victim. One of the shots hit him in the middle of his lower back, causing him to fall to the ground unable to move his leg. Martinez came up to the second victim and ordered him to give Martinez money. Defendant walked up, with his gun still in hand, and also demanded money
The second victim pulled some money out of his pocket and threw it at Martinez. When asked where the rest of his money was, he told Martinez it was in his bag in the trunk of the car. Defendant and Martinez then drove off.
The second victim called 911 with his cell phone. He was treated at the hospital and suffered permanent nerve damage in his lower back and leg.
On January 7, 2010, a jury found defendant guilty of the premeditated, attempted murders of the victims (§§ 664, 187, subd. (a), counts 1 &2), assaulting the victims with a firearm (§ 245, subd. (a)(2), counts 3 &4), and the second degree robbery of the second victim (§ 211, count 5). The jury additionally found firearm enhancements true in each count (§§ 12022.53, subds. (b) &(c), 12022.5, subd. (a).). The court sentenced defendant to a term of imprisonment of 54 years to life. At a restitution hearing thereafter, the court ordered defendant to pay a restitution fine in the amount of $3,274.73 pursuant to section 1202.4.
The court had not instructed the jury on aiding and abetting principles on counts 1 through 4; thus, the prosecution had relied on claims that defendant had directly perpetrated each offense. Therefore, on appeal from the judgment, as relevant here, this court reversed defendant's convictions on counts 2 and 4, pertaining to the offenses committed against the second victim, based on insufficient evidence.
At a hearing on January 17, 2014, on remittitur from this court, the trial court dismissed counts 2 and 4 and resentenced defendant to 43 years to life. The court reviewed the victim restitution order, but found that it applied to the victim against whom defendant had committed the extant offenses, counts 1 and 3: "I will make the same order $3,274.73, actual restitution to the victim compensation ...."
On February 18, 2022, defendant filed a form petition for resentencing pursuant of former section 1170.95. On April 14, 2022, the People filed opposition to the petition. In reliance on the facts as recited in Gonzalez, supra, E054599, the People argued defendant was the direct perpetrator of the attempted murder against the first victim.
At a hearing on April 15, 2022, at which defendant was not present but was represented by counsel, the court indicated, "I intend to adopt the position of the District Attorneys in their opposition. Because I believe in this case it's a factual determination clearly met by the jury [¶] . . . [¶] beyond a reasonable doubt that the Defendant [] personally fired, how many shots, three, five shots, at" the victim. "I read the decision. The Court of Appeal specifically finds that it is not probable and natural consequences; it's direct conduct of [defendant]. I think he doesn't have the benefit of the 1170.95."
Defense counsel submitted. The court denied the petition.
II. DISCUSSION
A. Presence at the Hearing
Defendant contends the court prejudicially erred in denying his petition without taking a waiver of his presence at the hearing. Specifically, defendant maintains that had he been present at the hearing, he may have retained counsel of his choice, filed a Marsden motion, or elected to represent himself. He argues, without citation to authority, that counsel is required to have at least one contact with his client and, therefore, any Marsden motion would have per se been granted. We disagree.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
"Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.'" (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)
"When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.)
" 'A defendant has the constitutional right to be personally present in court "where necessary to protect the defendant's opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding."' [Citations.]" (People v. Basler (2022) 80 Cal.App.5th 46, 57 (Basler).) "Critical stages of a defendant's criminal prosecution include the imposition of sentence, a sentence modification hearing, and resentencing. [Citations.]" (Id. at pp. 57-58.) These rights attach where an evidentiary hearing is required. (Id. at p. 58.)
A defendant has "a constitutional right to be present at his section [1172.6] evidentiary hearing ...." (Basler, supra, 80 Cal.App.5th at p. 51.) A defendant must either be present or competently waive his presence at the evidentiary hearing; a competent waiver requires "a knowing, intelligent[,] and voluntary waiver of his presence." (Id. at p. 51.) Whether a violation of a defendant's right to be personally present at the evidentiary hearing is prejudicial is determined by asking "whether his absence was harmless beyond a reasonable doubt. [Citations.]" (Id. at p. 59.)
Where "the record of conviction does not conclusively negate the possibility that the jury found" the defendant guilty under a theory which imputed malice to him by the actions of the actual perpetrator, "an evidentiary hearing is required." (People v. Langi (2022) 73 Cal.App.5th 972, 984.) On the other hand, where the record of conviction reflects that the defendant was not convicted under any theory of imputed malice, no evidentiary hearing is required. (People v. Patton (2023) 89 Cal.App.5th 649, 657 ["As the sole and actual perpetrator of the attempted murder of" the victim, a defendant "is ineligible for resentencing as a matter of law."]; People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review dismissed Nov. 17, 2021, S263939 ["[T]he jury instructions themselves demonstrate[d] as a matter of law that [the defendant] could not make a prima facie showing that he is entitled to relief."].)
Here, defendant had no right to be present at the prima facie hearing because it was not a critical stage. No case has held that a defendant's presence, or waiver thereof, is required at the prima facie stage of a section 1172.6 petition.
The purpose of the prima facie hearing is to determine whether defendant is legally eligible for relief. (Strong, supra, 13 Cal.5th at p. 708.) Thus, no factual determinations are to be made, and defendant's presence cannot affect the outcome of the hearing. (People v. Lewis (2021) 11 Cal.5th 952, 972 ["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.' "].)
Moreover, even if defendant had a right to be present at the hearing, any error would be harmless. Here, the court did not instruct the jury on felony murder, the natural and probable consequences doctrine, or any theory of imputed malice. (Gonzalez, supra, E054599, at p. 2 ["The prosecution tried the case based solely on the theory that each defendant directly perpetrated each attempted murder and each firearm assault on each victim."].) Thus, defendant was per se ineligible for relief.
We acknowledge that the court erred in determining defendant's ineligibility based on its in reliance upon the facts in this court's opinion in Gonzalez, supra, E054599. (People v. Clements (2022) 75 Cal.App.5th 276, 292 [The legislature "limited use of prior appellate opinions, allowing trial judges to 'consider [only] the procedural history of the case recited.' [Citation.]"]; accord People v. Flores (2022) 76 Cal.App.5th 974, 988; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.)
However,"' "we will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court. [Citation.] There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct." '" (Anderson v. Davidson (2019) 32 Cal.App.5th 136, 144.) Courts refuse requests for remand where the remedy would be "worse than pointless: remands would force people to expend resources but sentences would not change. There would be cost but no benefit." (People v. Venegas (2020) 44 Cal.App.5th 32, 42; People v. Schaffer (2020) 53 Cal.App.5th 500, 506 [pointless to remand where defendant would be unable to gain any effective relief].) Thus, since discussed ante, defendant was per se ineligible for relief, the court's order must be affirmed.
B. Appeal from the January 17, 2014, Hearing
Defendant additionally maintains he should be permitted to raise issues from his purported appeal from the resentencing hearing on January 17, 2014. Defendant asserts this would enable him to challenge, at minimum, (1) his gun enhancements based on laws passed after his resentencing; (2) the amount of the restitution fine; and (3) the court's purported prejudicial instruction of the jury with CALJIC 400 on the count 2 offense which he asserts affected the jury's verdict on count 5.
The proper vehicle for the constructive filing of an untimely notice of appeal is the filing of a petition pursuant to In re Benoit (1973) 10 Cal.3d 72 (Benoit). (See In re A.R. (2021) 11 Cal.5th 234, 253.) "[I]n this state habeas corpus is a proper vehicle with which to challenge the constitutional validity of prior felony convictions, long since final ...." (In re J.F. (1969) 268 Cal.App.2d 761, 766.) "[I]t is appellant's burden to establish error and error will not be found in a silent record ...." (People v. Nakano (2023) 89 Cal.App.5th 623, 634, fn. 11.) "[O]n appeal, the burden is on the appellant to provide an adequate record ...." (People v. Garcia (2018) 29 Cal.App.5th 864, 871.)
First, an appeal from the denial of a section 1172.6 petition is not the proper vehicle for challenging a resentencing order which occurred nine years earlier. If a notice of appeal was filed but not processed properly, defendant should file a Benoit motion. Otherwise, any challenge to the judgment should be made by petition for writ of habeas corpus.
Second, defendant's apparent contention that he filed an appeal from the January 17, 2014, resentencing hearing is not supported by any evidence. No notice of appeal from the January 17, 2014, resentencing appears in the record. Thus, defendant has failed his burden to provide an adequate record to evaluate his claims.
III. DISPOSITION
The court's order denying the petition is affirmed.
We concur: MILLER J., FIELDS_ J.