Opinion
B333728
11-26-2024
THE PEOPLE, Plaintiff and Respondent, v. RUDY LIMON, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PA047338 Michael Terrell, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Defendant and appellant Rudy Limon appeals from the trial court's order denying his petition for resentencing under Penal Code section 1172.6 (former § 1170.95). Because defendant is ineligible for section 1172.6 relief as a matter of law, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, former section 1170.95 was renumbered section 1172.6, with no substantive change. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to the section by its new numbering.
BACKGROUND
We provide these facts, drawn from our nonpublished opinion in defendant's direct appeal from his conviction, for context only.
In September 2002, Sergio Reyes (Reyes) married defendant's former wife, which ended defendant's friendship with Reyes. (People v. Rodriguez (Nov. 14, 2008, B195503) [nonpub. opn.].) In about February 2003, defendant met with Dean Cairo Rodriguez (Rodriguez) and gave Rodriguez an envelope containing a photograph of Reyes and $10,000 in cash. (Ibid.)
In April 2003, Rodriguez and a companion shot at Reyes. (People v. Rodriguez, supra, B195503.) Reyes was wounded twice but survived. (Ibid.) After hearing that Reyes was recovering, defendant directed Rodriguez to complete the job. (Ibid.) Fearing that suspicion for the shooting might focus on his brother, defendant paid Rodriguez a $2,000 or $4,000 cash bonus to shoot Reyes before defendant's brother was set to be paroled from prison in February 2004. (Ibid.)
On December 13, 2003, Reyes drove to the drive-through line of a fast food restaurant. (People v. Rodriguez, supra, B195503.) Rodriguez approached Reyes's vehicle on foot, broke the window with a center punch, and fatally shot Reyes. (Ibid.)
II. Trial; Sentencing; Direct Appeal
In 2006, a jury found defendant guilty of first degree murder (§ 187, subd. (a); count 1) and attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664; count 2). As to count 1, the jury found true two special circumstance allegations-first, that Reyes's murder "was intentional and [was aided and abetted by defendant] for financial gain" (§ 190.2, subd. (a)(1)); and second, that Reyes's murder "was committed by . . . defendant, . . . who, as an aider and abettor, intentionally killed . . . Reyes by means of lying in wait" (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to a prison term of life without the possibility of parole plus a consecutive term of life.
Rodriguez was tried with defendant; the jury found Rodriguez guilty of the murder and attempted murder and found true financial gain and lying in wait special circumstances. (People v. Rodriguez, supra, B195503.) In addition, the jury found that Rodriguez personally discharged a firearm proximately causing injury or death within the meaning of section 12022.53, subdivision (d). (People v. Rodriguez, supra, B195503.) Rodriguez is not a party to this appeal.
We affirmed the judgment on direct appeal. (People v. Rodriguez, supra, B195503.)
III. Section 1172.6 Petition
In March 2022, defendant filed a petition for resentencing pursuant to section 1172.6. Defendant's appointed counsel subsequently filed a brief asserting that the record of conviction did not conclusively establish that defendant was ineligible for relief. The People opposed the petition, arguing that defendant was prosecuted as a principal who committed the crimes with actual malice and was not entitled to section 1172.6 relief.
IV. Trial Court's Ruling
The trial court held a hearing on defendant's section 1172.6 petition in August 2023. The court denied the petition, explaining: "[D]efendant was convicted of first-degree murder. There was a finding by the jury that the allegation that he did this for financial gain and lying in wait was true. There were no jury instructions on felony murder or anything involving natural and probable consequences or anything involving imputed malice. [¶] This was a murder for hire case, and I don't . . . think that sort of case is covered by . . . [section] 1172.6."
V. Appeal
Defendant timely appealed from the order denying his section 1172.6 petition.
DISCUSSION
I. Relevant Law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) substantively amended sections 188 and 189 to "eliminate[] natural and probable consequences liability for murder as it applies to aiding and abetting[] and limit[] the scope of the felony-murder rule. [Citations.]" (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The bill also added what is now section 1172.6 to provide "a procedural mechanism for defendants who could not be convicted of murder under the amended laws to seek retroactive relief. [Citations.]" (People v. Rodriguez (2024) 103 Cal.App.5th 451, 457.)
In order to obtain resentencing relief, a defendant convicted of murder must allege that (1) an information was filed against him allowing the prosecution to proceed under a theory of murder under the felony murder rule, the natural and probable consequences doctrine, or any "other theory under which malice is imputed to a person based solely on that person's participation in a crime" (§ 1172.6, subd. (a)(1)); (2) he was convicted of murder (§ 1172.6, subd. (a)(2)); and (3) he could not now be convicted "because of changes to [s]ection 188 or 189 made effective January 1, 2019" (§ 1172.6, subd. (a)(3)).
Upon the filing of a properly pleaded petition for resentencing, the trial court must conduct a prima facie analysis to determine the defendant's eligibility for relief. (§ 1172.6, subds. (b)(3) &(c); People v. Strong (2022) 13 Cal.5th 698, 708; Lewis, supra, 11 Cal.5th at pp. 957, 960.) "[T]he prima facie inquiry . . . is limited.... '"[T]he court takes [a] [defendant]'s factual allegations as true and makes a preliminary assessment regarding whether the [defendant] would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause"'" and set the matter of an evidentiary hearing. (Lewis, at p. 971.)
In making this assessment, the trial court may consider the defendant's record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971.) "The record of conviction will necessarily inform the trial court's prima facie inquiry . . . allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.) However, "the court should not make credibility determinations or engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.]" (Id. at p. 974.)
II. Standard of Review
We review de novo the trial court's denial of a section 1172.6 petition at the prima facie stage. (People v. Coley (2022) 77 Cal.App.5th 539, 545 (Coley).)
III. The Trial Court Did Not Err
Applying these legal principles, we conclude that the trial court properly denied defendant's section 1172.6 petition. As described above, a successful prima facie case for section 1172.6 relief requires a defendant to aver, inter alia, that he could no longer be convicted "because of" the 2019 statutory changes. (§ 1172.6, subd. (a)(3).) Defendant cannot satisfy this requirement here because the record of conviction conclusively establishes that he was convicted of first degree murder under a theory of directly aiding and abetting express malice murder, a theory unaffected by the 2019 changes to sections 188 and 189. (See People v. Gentile (2020) 10 Cal.5th 830, 848 ["Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought"]; Coley, supra, 77 Cal.App.5th at p. 546 ["A theory of direct aiding and abetting remains a valid theory after Senate Bill No. 1437"].)
On appeal, defendant does not challenge the denial of his section 1172.6 petition as to his attempted murder conviction. He has thus forfeited any claim of error in that respect. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived"].)
The jury that convicted defendant was not instructed on felony murder, the natural and probable consequences doctrine, or any theory of liability relying on imputed malice. (People v. Cortes (2022) 75 Cal.App.5th 198, 205 [a petitioner is ineligible for § 1172.6 relief as a matter of law if the jury instructions show that jurors were not instructed on any theory of murder liability that allowed malice to be imputed].) Rather, the jury was instructed with CALJIC No. 3.01 on direct aiding and abetting principles, which explained that an aider and abettor must (1) know of the perpetrator's unlawful purpose, (2) have the intent or purpose of committing, encouraging, or facilitating the commission of the crime, and (3) by act or advice, aid, promote, encourage, or instigate the commission of the crime.
Additionally, the jury's true findings on the two special circumstances-murder for financial gain (§ 190.2, subd. (a)(1)) and by means of lying in wait (§ 190.2, subd. (a)(15))-specified that defendant was convicted of murder as an aider and abettor. The jury thus could not and did not convict defendant under any theory of imputed malice.
Resisting this conclusion, defendant makes what boil down to two arguments. Neither has merit.
First, defendant argues that former CALJIC No. 3.00, which as given to the jury at defendant's trial instructed that "[e]ach principal, regardless of the extent or manner of participation is equally guilty[,]" allowed the jury to impute the direct perpetrator's mental state on defendant. We disagree.
We recognize that, after defendant's trial, the California Supreme Court noted that the "equally guilty" language in former CALJIC No. 3.00 "could be misleading if the principals in a particular case might be guilty of different crimes and the jury interprets the instruction to preclude such a finding." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) The court noted, however, that the instruction "generally stated a correct rule of law" in that "[a]ll principals, including aiders and abettors, are 'equally guilty' in the sense that they are all criminally liable." (Ibid.) And, in People v. Johnson (2016) 62 Cal.4th 600, 641 (Johnson), our Supreme Court rejected the argument that the "equally guilty" language in former CALCRIM No. 400, an instruction similar to former CALJIC No. 3.00, allowed a jury to convict an aider and abettor of first degree murder based on the direct perpetrator's culpability without considering the aider and abettor's own mental state.
Even if the jury here could have had been misled by the language in former CALJIC No. 3.00, that error would not render defendant eligible for relief under section 1172.6. Both the law in effect at the time of defendant's trial (see, e.g., People v. McCoy (2001) 25 Cal.4th 1111, 1118 [an "aider and abettor must know and share the murderous intent of the actual perpetrator"]) and the instructions given to the jury (e.g., CALJIC No. 3.01) already required that an aider and abettor to a murder must personally have malice. The allegedly misleading language in former CALJIC No. 3.00 did not transform defendant's case into a prosecution based on a "theory under which malice is imputed to a person based solely on that person's participation in a crime" (§ 1172.6, subd. (a)(1)).
As explained in People v. Burns (2023) 95 Cal.App.5th 862, 868-869, "[t]he problem with the 'equally guilty' language . . . was not that it permitted the jury to rely on a now-invalid theory of criminal liability, but that it may have misled the jury as to what was then required to convict [the defendant]. Use of the 'equally guilty' language in the instruction . . . created a potential issue of instructional error, but it did not operate to offer the jury a theory of legal liability that can no longer support a conviction for murder as a result of the recent statutory changes."
Furthermore, in cases where the jury is properly instructed on the requirements for establishing aider and abettor liability, "there [is] no reasonable likelihood the jurors would have understood the 'equally guilty' language . . . to allow them to base defendant's liability for first degree murder on the mental state of the actual shooter, rather than on defendant's own mental state in aiding and abetting the killing. [Citations.]" (Johnson, supra, 62 Cal.4th at p. 641.)
Second, defendant argues that because the verdict form did not include any explicit finding of premeditation, he must have been convicted of murder under a theory of lying in wait, which did not require an intent to kill. (See CALJIC No. 8.25 ["Murder which is immediately preceded by lying in wait is murder of the first degree"].) Coupled with the "equally guilty" language, defendant contends that malice could have been imputed on him "by way of the lying in wait actus reus and [the] presumptive mens rea of his confederate."
Again, we are not convinced. Defendant relies on People v. Maldonado (2023) 87 Cal.App.5th 1257, which held that the lying-in-wait instruction could allow a jury to impute malice to a person convicted of aiding and abetting implied malice murder, because the lying-in-wait instruction arguably requires neither the perpetrator nor the aider and abettor to intend to kill or to consciously disregard any risk to human life. (Id. at p. 1266.) But this reasoning does not apply here, where defendant was convicted of express, not implied, malice murder. As the jury was instructed, express malice murder requires a finding that the perpetrator "manifested an intention unlawfully to kill a human being." (CALJIC No. 8.11.)
As defendant concedes, the jury was not instructed on implied malice murder.
The jury's true finding on the lying-in-wait special circumstance allegation also conclusively establishes that defendant was convicted under a theory that he personally harbored malice. The jury was instructed that the lying-in-wait special circumstance required proof that "[t]he defendant intentionally killed the victim[.]" (CALJIC No. 8.81.15.1.) In this context "[t]he defendant" applied to both Rodriguez (the direct perpetrator of the murder) and defendant because the jury was also instructed that "[t]he word 'defendant' applies to each defendant unless you are instructed otherwise." (CALJIC No. 1.11.) And, consistent with these instructions, the verdict form stated, "We further find that the Murder of Sergio Reyes was committed by the defendant, Rudy Limon, who, as an aider and abettor, intentionally killed Sergio Reyes by means of lying in wait, within the meaning of Penal Code Section 190.2(a)(15) to be true." (Italics added.)
On this record of conviction, defendant cannot show that he was convicted of murder under any theory of imputed malice based solely on participation in a crime. Nor can he demonstrate that he could no longer be convicted of murder because of the 2019 changes to sections 188 or 189. Therefore, he is ineligible for relief as a matter of law, and the trial court correctly denied his resentencing petition.
DISPOSITION
The order denying defendant's section 1172.6 petition for resentencing is affirmed.
We concur: LUI, P. J., CHAVEZ, J.