Opinion
H050834
12-28-2023
In re H.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. H.V., Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. J34631)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
In 1999, the juvenile court found that the minor, H.V., committed attempted murder (Pen. Code, §§ 187, 664), and that the minor personally used a firearm and caused the victim great bodily injury in the attempted murder (§ 12022.53, subds. (b) &(d)). The juvenile court also found that the minor committed assault with a firearm upon a second victim, and that he personally used a firearm during the offense (§§ 245, subd. (a)(2), 12022.5, subd. (a)). The juvenile court declared the minor a ward of the court and committed him for 34 years to life with an additional determinate term of two years four months.
All further statutory references are to the Penal Code.
In May 2022, the minor filed a petition under section 1172.6, seeking to vacate the attempted murder finding and to be resentenced. The trial court denied the petition without issuing an order to show cause, finding the minor failed to establish a prima facie case for relief. The minor appeals the trial court's denial of his petition. For reasons we will explain, we will affirm the trial court's denial of the minor's petition.
For the sake of clarity, we will refer to the court that presided over the original proceedings regarding the minor as the "juvenile court," and the court that ruled on the minor's section 1172.6 petition as the "trial court." In addition, at the time the minor filed his petition, what is now section 1172.6 was designated as section 1170.95. For ease of reference, we will refer to this statute by its current designation.
II. BACKGROUND
A. Factual Summary
Our resolution of this matter does not require an analysis of the evidence from the minor's juvenile court proceedings. Thus, we provide only a brief summary of the factual background in this matter.
Following the juvenile court's judgment, the minor appealed and this court affirmed the judgment. This court's prior opinion is included in the appellate record as an attachment to the prosecution's response to the minor's section 1172.6 petition. The factual summary in the instant matter is drawn in part from the statement of facts contained in this court's previous opinion and also from the minor's jurisdictional hearing that is part of the appellate record in this matter. We provide this summary to provide general background as to these proceedings, not to resolve any contested factual matters. (See People v. Flores (2022) 76 Cal.App.5th 974, 988 (Flores) [a factual summary in a prior appellate opinion cannot establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage].)
Two males were chased by a group of 15 or 20 people who came out of an apartment. Someone in the group yelled "Norte" at them, referring to members of a criminal street gang. One of the two males being chased was a member of the rival Sureno street gang, while the other male being chased was known to his friends by a Sureno gang-related moniker. As the two males ran from their pursuers, one of the males heard gunshots from a short distance behind him. The two stopped at a parking lot, where one of the males felt blood coming from a grazing wound above his eye. The other person collapsed in the parking lot, having been shot in the armpit. The person with the wound above his eye departed and found a friend, and he and the friend then drove the other injured male to the hospital, where he was found to have a gunshot wound that required surgery. Another witness to the shooting testified as a hostile witness for the prosecution. This witness testified that he saw two people wearing dark hooded sweatshirts hiding behind a van and "creeping" up on the two males. The witness testified that he saw firing and heard gunshots coming from close to him, and that he saw the person who sustained the gunshot wound to the armpit (the witness's friend) fall with blood coming out of his body. The witness also told police that he knew the shooter, and he ultimately identified the minor in a photo lineup as the shooter.
Police interviewed the minor, who stated that one of his friends had earlier been "beaten up" by some rival gang members. The minor told police that he and another person visited the friend who had been beaten up, and that as they left from the visit, they were running from seven or eight rival gang members who were chasing them. The minor told police that he shot twice in the direction of the rival gang members with a .22-caliber semiautomatic pistol while he was running away, that his gun then jammed, and that he then got rid of the weapon and hid.
B. Procedural History
The prosecution filed an amended petition alleging the minor committed four offenses: two counts of attempted murder (§§ 187, 664) and two counts of assault with a firearm (§ 245, subd. (a)(2)). The amended petition named one of the two males as the victim in one of the attempted murder counts and one of the counts of assault with a firearm, and it named the other male as the victim in the remaining attempted murder count and the remaining count of assault with a firearm. The petition contained additional allegations with regard to each count.
At the juvenile court proceedings, the prosecutor argued that the minor committed the alleged offenses because the minor was the shooter who acted with intent to kill. The prosecutor argued: "As far as the evidence goes the minor intended not only to shoot but premeditated the shooting is that [sic] he brought the gun the day before. He carried the gun loaded on his person. He went over to a friend's house who had been beat by people he believed to be Sure[n]o gang members. He then went out and proceeded to shoot two Sure[n]o gang members and/or associates. I'd point out that the location of the injury on the chest of [the person who sustained the gunshot wound to his armpit] is further evidence of his intent to kill. The fact that he discharged the weapon not once but at least twice and according to I believe [the person who sustained the injury above his eye] more than twice and the only thing that stopped him from continuing to discharge the weapon based on his own statements was because the gun actually jammed." The prosecutor cited the testimony of the other witness and the minor's statements to police - including the minor's statement that he had a weapon of the same caliber as the shell casings found at the scene of the shootings - to argue the minor committed the charged offenses.
The juvenile court found that the minor committed the attempted murder of the victim who sustained the gunshot wound to the armpit and the assault with a firearm of the other male. The juvenile court stated that despite issues with the other witness's testimony, "the Court finds based upon the confession of the minor and the testimony of this eye witness that the minor . . . was in fact the shooter." Later, the juvenile court stated that it was "convinced that it was [the minor] who shot [the attempted murder victim] and that he shot him for gang purpose, that the decision to shoot was not made in extreme haste or extreme duress or under circumstances creating a need for self-defense and that the shooting can only be described as a -- an attempt to kill although there is no strong evidence that he had any particular individual in mind but nonetheless shooting at a crowd of people with the intent to kill any of them is sufficient to sustain a charge of attempted murder." Accordingly, the juvenile court sustained the attempted murder count regarding the person who sustained the gunshot wound to the armpit and dismissed the assault with a firearm offense regarding this victim, finding the assault with a firearm count an "included offense" to the attempted murder count. As to the other victim, the one who sustained an injury above his eye, the juvenile court concluded that the prosecution did not prove beyond a reasonable doubt that this injury was caused by one of the bullets the minor fired. Therefore, the trial court did not sustain the attempted murder count regarding this victim, instead sustaining the assault with a firearm count regarding this victim. The juvenile court further sustained allegations that the minor personally used a firearm and caused great bodily injury concerning the attempted murder, and that the minor personally used a firearm in the assault with a firearm count.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) took effect on January 1, 2019, imposing "statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § 1, subd. (b).) Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) later "[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." (Stats. 2021, ch. 551, § 1, subd. (a).) Senate Bill 1437 added what is now designated as section 1172.6, which provides an avenue for a person to petition the sentencing court to vacate the conviction and to be resentenced under these legislative measures.
The minor petitioned for relief under section 1172.6. A statement accompanying his petition alleged that he did not fire the shots at the two victims. The minor's statement cited as partial support for this argument the following statement by the mother of the attempted murder victim in a probation officer's report: "She also said her son told her that the person ([the minor]) who was in custody for shooting him was innocent and added that she would like to have the real suspect come forth and admit to the attempted murder. She is not certain of the validity of her son's statement, but stated her son felt strongly that [the minor] was not the one who had shot him." Thus, the minor asserted that he was entitled to relief under section 1172.6 because he could not be found guilty of attempted murder under current law, contending in part: "I am not the actual shooter ...."
The prosecutor's brief in response to the section 1172.6 petition asserted the minor was not eligible for relief as a matter of law. The prosecution's response asserted that the facts recited in this court's prior opinion following the juvenile court's judgment demonstrated the minor was not eligible for relief. The prosecution asserted: "[T]he Respondent here is asking the Court to consider the factual summary in the appellate opinion for the limited purpose of determining whether the Petitioner is entitled to an evidentiary hearing as a matter of law. Specifically, the Court, at this stage, is asked to review the factual summary and determine whether the Petitioner could have had the allegation of attempted murder found true under the doctrine of natural and probable consequences. [¶] In the case at bar, the Petitioner was the only shooter referred to in the factual summary. The Petitioner, himself, admitted to shooting a firearm after he was taken into custody and read his Miranda rights. The actual shooting of the firearm removes the possibility that the Petitioner was merely a participant in an underlying felony which resulted in malice being imputed onto him. The facts in the appellate opinion do not possibly support a theory involving the Petitioner, as a mere aider and abettor, participating in a crime where the attempted murder . . . was an unintentional consequence." The prosecutor's response also asserted that if the juvenile court had found the minor lacked the intent to kill the attempted murder victim, it could have acquitted the minor of the attempted murder charge and instead found the minor committed assault with a firearm, as it did concerning the other victim. The prosecution's response concluded: "Petitioner was the sole shooter in this matter; thus, there is no possibility of imputed malice based solely on his participation in the crime and the Court should deny the [section 1172.6] petition as a matter of law."
In a reply brief the minor personally submitted, the minor asserted that he was not the actual shooter in the incident. The minor's brief also attached several documents from the minor's proceedings before the juvenile court, along with the transcript of the juvenile court proceedings. Later, a brief submitted by the minor's counsel asserted the minor was not the actual shooter in the charged actions and thus a prima facie case for relief existed, citing evidence from the juvenile court proceedings and attaching portions of the transcript from these proceedings. This reply asserted the prosecution could not show as a matter of law that the minor was convicted under a still-valid theory of attempted murder because the minor "is factually innocent of the shooting," citing evidence that allegedly demonstrated he either did not fire a weapon that evening or fired a weapon after the victims were already gone from the scene. After contending the trial court could not use the factual summary this court's prior opinion to establish the minor's ineligibility for relief, the reply repeated the assertion that the minor "is factually innocent of the shooting for which he was convicted," citing evidence from the juvenile court proceedings and the statement from the mother of the attempted murder victim in the probation officer's report. This reply brief also attached a statement from the minor in which he detailed his claim that he did not shoot at the victims. This brief also attached the probation officer's presentencing report containing the statement from the attempted murder victim's mother asserting the minor's innocence.
The prosecution then filed a reply to the minor's brief, asserting that the minor's claims of factual innocence were not relevant to the trial court's prima facie determination, and that the trial court could consider this court's prior appellate opinion to demonstrate that the prosecution's theory at the minor's hearing was that the minor was the actual shooter. The prosecution's reply asserted "the appellate opinion coupled with the rest of the record of conviction demonstrates that the Petitioner was necessarily prosecuted and convicted under the theory that he harbored malice and intended to kill the victim."
The trial court issued an oral ruling denying the petition, finding the record of conviction established the minor was convicted as the actual shooter, and thus he was not eligible for relief under section 1172.6 as a matter of law. The trial court stated it reviewed the record of conviction, including this court's prior opinion, and that "[t]he appellate opinion is being considered not for the truth of the facts, rather being considered for whether the record of conviction shows conclusively that the petitioner was necessarily convicted of a theory that was not impacted by the amendments of Penal Code Section 188 and 189 by Senate Bills 1437 and 775." The trial court concluded: "[T]he sole theory that the petitioner was tried under considering the appellate opinion and the verdict, was that the petitioner was the actual perpetrator of the attempted murder....[T]here is no support in the record of conviction for the petitioner's position that he was convicted under [an im]permissible theory of imputed malice." This appeal followed.
III. DISCUSSION
The minor argues the trial court erred in denying his section 1172.6 petition for two reasons. Primarily, he asserts that a probation officer's report is part of the record of conviction the trial court could have consulted in deciding the issues raised by the section 1172.6 petition. He asserts that the statement from the attempted murder victim's mother in the report, "if admissible and accepted as true, raises the possibility [the minor] could have been found vicariously liable for aiding a direct perpetrator in the commission of a crime whose natural and probable consequence was the commission of attempted murder. If so, he could not now be convicted of attempted murder." Secondarily, while the minor does not frame this as a separate issue, he contends the trial court erred by using the statement of facts recounted in this court's prior opinion to establish the minor was the actual perpetrator of the attempted murder. We find no prejudicial error in the trial court's denial of the minor's petition.
Under section 1172.6, "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 on any remaining counts" when all of certain conditions apply. (§ 1172.6, subd. (a).) Section 1172.6 applies where a juvenile court has sustained an allegation of attempted murder against a minor. (See In re R.G. (2019) 35 Cal.App.5th 141, 151.) Under section 1172.6, "the process begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,' the effective date of Senate Bill 1437 [citation]." (People v. Strong (2022) 13 Cal.5th 698, 708.) "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. [Citations.]" (Ibid.) "[T]he court may appropriately deny a petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law." (People v. Harden (2022) 81 Cal.App.5th 45, 52.) "We independently review a trial court's determination on whether a petitioner has made a prima facie showing. [Citation.]" (Ibid.)
"The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process. [Citation.]" (People v. Lewis (2021) 11 Cal.5th 952, 971.)
Prior to recent amendments to the Penal Code, "[t]he natural and probable consequences doctrine made 'a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a "natural and probable consequence" of the crime originally aided and abetted.' [Citation.]" (People v. Johns (2020) 50 Cal.App.5th 46, 58.) Therefore, "the natural and probable consequences doctrine constituted an exception to the requirement of either express or implied malice for a murder conviction. [Citation.]" (People v. Vargas (2022) 84 Cal.App.5th 943, 953.) Section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine. [Citation.]" (People v. Coley (2022) 77 Cal.App.5th 539, 548.) Thus, where a section 1172.6 petitioner was convicted as "the sole and actual perpetrator of the attempted murder," the petitioner "is ineligible for resentencing as a matter of law. [Citations.]" (People v. Patton (2023) 89 Cal.App.5th 649, 657 (Patton).) As the reviewing court stated in People v. Hurtado (2023) 89 Cal.App.5th 887: "Here is something novel-a criminal case that need not undergo a hearing pursuant to Penal Code section 1170.95 (now section 1172.6). Why? Because the defendant was the only person who committed the crime of attempted murder for which a jury found him guilty beyond a reasonable doubt." (Id. at p. 889, fns. omitted.)
The record of conviction conclusively establishes the minor was not convicted under the natural and probable consequences doctrine or any other theory of imputed malice. Instead, the juvenile court found the minor was the actual shooter of the attempted murder victim who acted with the intent to kill, and this finding renders the minor ineligible for section 1172.6 relief as a matter of law. The prosecution presented evidence and argument aimed at proving the minor was the person who shot at the victims. The prosecutor argued that the minor was the shooter and that he acted with intent to kill. At no point did the prosecutor argue that any theory of imputed malice applied. The juvenile court specifically found "based upon the confession of the minor and the testimony of this eye witness that the minor . . . was in fact the shooter." The juvenile court also concluded that the minor shot at attempted murder victim for gang-related reasons with the intent to kill, that the minor committed the attempted murder with the personal use of a handgun within the meaning of section 12022.53, subdivision (b), and that under section 12022.53, subdivision (d) the minor personally and intentionally discharged a firearm, causing great bodily injury to the attempted murder victim. The record of conviction establishes as a matter of law that the minor was not convicted under the natural and probable consequences doctrine or any other theory of imputed malice; instead, as "the sole and actual perpetrator of the attempted murder," defendant "is ineligible for resentencing as a matter of law. [Citations.]" (Patton, supra, 89 Cal.App.5th at p. 657.)
The minor argues that the statement from the attempted murder victim's mother in the probation officer's report indicates he did not fire the weapon that caused the injury to the attempted murder victim, and therefore "it remains possible as a matter of law that the court imputed malice to him under the natural and probable consequences doctrine." He asserts the probation officer's report is part of the record of conviction and the statements in the report are admissible in section 1172.6 proceedings. However, even if the statement from the mother of the attempted murder victim contained in the probation officer's report is part of the record of conviction and is properly considered in the prima facie determination, nothing about this statement provides any indication the juvenile court's findings were based on the natural and probable consequences doctrine or any other theory of imputed malice. The minor points to this statement to assert he was not the actual shooter, but the juvenile court already specifically found the minor was the actual shooter in the original proceedings. The statement in the probation officer's report does nothing to change the fact that the minor was found to be the actual shooter, and to the extent the minor uses this statement to argue he is innocent of the offenses he was found to have committed, section 1172.6 provides him no relief in this regard. "The mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings. To the contrary, '[n]othing in the language of section [1172.6] suggests it was intended to provide redress for allegedly erroneous prior factfinding....The purpose of section [1172.6] is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.' [Citation.]" (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) The probation officer's report, even if it is properly considered as part of the record of conviction in the prima facie determination, does not impeach the juvenile court's finding in the original proceedings that the minor was the actual shooter. As such, the minor is ineligible for section 1172.6 relief as a matter of law.
In People v. Del Rio (2023) 94 Cal.App.5th 47, the Court of Appeal concluded that "even if the trial court could consider reliable hearsay evidence in choosing an uncharged target offense to form the new basis for conviction [in resentencing proceedings], the probation report here was neither admissible nor reliable." (Id. at p. 57.) The minor cites this decision as support for his position that the trial court could consider the probation officer's report in the prima facie determination.
Finally, the minor asserts that the trial court improperly relied on the statement of facts in this court's prior opinion to conclude he was the actual shooter and therefore ineligible for relief. In denying the minor's petition, the trial court stated that it considered this court's opinion "not for the truth of the facts," but rather "for whether the record of conviction shows conclusively that the petitioner was necessarily convicted of a theory that was not impacted by the amendments of Penal Code Section 188 and 189 by Senate Bills 1437 and 775." The trial court did not further specify to what extent it relied upon the statement of facts contained in this court's prior opinion. Assuming without deciding that the trial court erred by relying on the statement of facts in this court's prior opinion, we find no prejudice in the trial court's reliance on the factual summary in our prior opinion. Where a trial court improperly relies on facts stated in an appellate opinion, the error may be found harmless where the record of conviction conclusively establishes the petitioner is ineligible for relief. (See People v. Bratton (2023) 95 Cal.App.5th 1100, 1104-1105 [discussing the harmless error standard in this context].) As discussed above, the juvenile court's findings in the original proceedings were based on the minor being the actual shooter who acted with intent to kill and not based on the natural and probable consequences doctrine or any other theory of imputed malice. Even omitting any consideration of the factual summary contained in this court's prior opinion, the record of conviction establishes as a matter of law that the minor is ineligible for section 1172.6 relief. Thus, any error by the trial court in this regard was harmless.
The factual summary in an appellate opinion cannot "establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage." (Flores, supra, 76 Cal.App.5th at p. 988, fn. omitted; see also People v. Lee (2023) 95 Cal.App.5th 1164, 1183-1184 ["After Senate Bill No. 775 . . . 'the factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner's eligibility for resentencing.' [Citations.] By logical extension, the factual summary also may not be used to determine a petitioner's eligibility at the prima facie stage. [Citation.]"].)
IV. DISPOSITION
The trial court's order denying the minor's petition for resentencing is affirmed.
WE CONCUR: DANNER, J. BROMBERG, J.