Opinion
B328263
04-18-2024
THE PEOPLE, Plaintiff and Respondent, v. GREGORIO MACHUCA, Defendant and Appellant.
Rachel Varnell, 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, Senior Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA384881 Craig J. Mitchell, Judge. Affirmed.
Rachel Varnell, 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, Senior Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
In 2013 Gregorio Machuca was convicted of attempted willful, deliberate and premeditated murder and possession of a firearm by a felon. The jury also found true firearm and gang allegations. We affirmed the judgment but directed the trial court to correct the sentencing minute order and abstract of judgment. (People v. Machuca (Dec. 17, 2014, B249032) [nonpub. opn.] (Machuca I).)
On January 24, 2022 Machuca filed a petition for resentencing under Penal Code section 1170.95 (now section 1172.6), which provides a procedure for an individual convicted of felony murder or murder under the natural and probable consequences doctrine to petition the superior court to vacate the conviction and be resentenced on any remaining counts if the individual could not have been convicted of murder under changes to sections 188 and 189 pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). After appointing counsel for Machuca, the trial court summarily denied the petition on the basis that Machuca was ineligible for relief as the actual shooter.
Further statutory references are to the Penal Code.
Machuca contends on appeal that the trial court improperly relied on our opinion in Machuca I to conclude he was the actual shooter, and the trial court's mistake was structural error. Although we agree with Machuca that the trial court improperly relied on our opinion in Machuca I to find he was the actual shooter, the error was harmless (and structural error analysis does not apply). We also reject Machuca's contention, raised for the first time in this appeal from the postjudgment order, that we have jurisdiction to consider whether at the initial sentencing hearing the trial court erred in imposing a minimum 15-year parole eligibility gang enhancement under section 186.22, subdivision (b)(5), because the jury did not find Machuca personally used a firearm. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting and Machuca's Conviction
On May 25, 2011 Los Angeles Police Detectives Alex Jacinto and Timothy Stack were riding in an unmarked police vehicle. As their car was stopped at an intersection, Detective Jacinto saw Machuca and Dontay Price leaving a shopping center parking lot in a silver Ford Focus. Approximately 10 to 15 minutes later, a shooting occurred at a location about two miles away from the shopping center. Several witnesses reported hearing multiple gunshots and seeing the suspects flee in a gray vehicle. After the initial round of gunshots, one of the witnesses, Leon White, saw a man he later identified as Machuca standing about 25 yards from White's car holding a dark-colored gun in his right hand. The shooter had his arm raised to shoulder height and was pointing the gun in the direction of a man riding a bicycle. The man abandoned the bicycle and fled on foot. The shooter got into a gray Ford Focus and drove toward the man who fled. White then heard a second round of gunshots from a block away.
We provide a recitation of the facts as set forth in Machuca I only as background.
As Detectives Jacinto and Stack drove toward the scene of the shooting, Detective Jacinto spotted a Ford Focus in the driveway of Machuca's residence, which was less than 100 feet from where the second round of shots was fired. The detectives approached the driveway, and Detective Jacinto saw a man he believed was Price running from the back of the residence. The police obtained a search warrant and recovered clothes and two bullets from Machuca's bedroom. Later that day Machuca told the investigating officers to look inside the air filter compartment of a pick-up truck parked in Machuca's driveway. The officers recovered a nine-millimeter semiautomatic handgun and gun holster from the truck.
The police determined that Price's mother was the registered owner of the Ford Focus, and the officers recovered a DMV registration card in Price's name from the vehicle. The police later recovered spent nine-millimeter bullet casings from the area near the shooting, which matched the firearm found at Machuca's residence.
Video surveillance footage from a local business showed a man riding a bicycle on Washington Boulevard while looking over his shoulder. The man then turned and rode his bicycle in the opposite direction as he continued to look behind him. After veering into the street and almost colliding with a vehicle, the man dropped the bicycle and fled on foot. The video footage showed another man the police believed to be Machuca holding an object in his hand and walking in the same direction as the bicyclist. A short time later a car resembling a Ford Focus could be seen on the video.
The jury found Machuca guilty of attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664) and possession of a firearm by a felon (former § 12021, subd. (a)). The jury found true allegations that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) &(e)(1)) and that both crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Machuca to 15 years to life, plus 23 years four months. We affirmed the judgment but directed the trial court to correct the sentencing minute order and abstract of judgment. (Machuca I, supra, B249032).
B. Machuca's Petition for Resentencing
On January 24, 2022 Machuca, representing himself, filed a form petition for resentencing under section 1170.95 on the basis that he "could not be presently convicted of murder or attempted murder" under the changes made to sections 188 and 189, effective January 1, 2019. The superior court appointed counsel for Machuca, and the People filed an opposition. In their opposition, the People argued Machuca was ineligible for relief because he was the shooter "and a jury found beyond a reasonable doubt that Machuca acted with malice aforethought when he was convicted of attempted premeditated murder." The People also noted that the trial court did not instruct the jury on the felony-murder rule or the natural and probable consequences doctrine. The People attached to their opposition a copy of our opinion in Machuca I.
Counsel for Machuca filed a reply arguing that Machuca established a prima facie case for relief and the trial court should therefore issue an order to show cause and conduct an evidentiary hearing. Counsel argued reliance on our opinion in Machuca I is prohibited factfinding, and the jury's true finding on the firearm enhancement did not make him ineligible for relief.
Following oral argument, the superior court summarily denied the petition for resentencing without issuing an order to show cause. The court explained it was "finding that Mr. Machuca as the actual shooter has not made a prima facie showing that he is entitled to relief." Machuca filed a timely notice of appeal.
DISCUSSION
A. Senate Bill 1437 and Section 1172.6
Senate Bill 1437 eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952 (Lewis), 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848; see People v. Reyes (2023) 14 Cal.5th 981, 984.) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual's participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule as set forth in section 189, subdivision (e). (Reyes, at p. 986; Gentile, at pp. 842-843.) Section 189, subdivision (e), now requires the People to prove specific facts relating to the defendant's individual culpability: The defendant was the actual killer (§ 189, subd. (e)(1)); although not the actual killer, the defendant, with the intent to kill, assisted in the commission of murder in the first degree (§ 189, subd. (e)(2)); or the defendant was a major participant in an underlying felony listed in section 189, subdivision (a), and acted with reckless indifference to human life as described in section 190.2, subdivision (d) (the felony-murder special-circumstance provision) (§ 189, subd. (e)(3)). (See Strong, at p. 708.)
Senate Bill 1437 also provided a procedure in former section 1170.95, now codified in section 1172.6, for an individual convicted of felony murder or murder under the natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if the individual could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.)
If the section 1172.6 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief based on the requirements of subdivision (a), the sentencing court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1172.6, subdivision (b)(3). Further, upon the filing of a facially sufficient petition, the court must determine whether the petitioner has made a prima facie showing of entitlement to relief. (See § 1172.6, subd. (c).) Where a petitioner makes the requisite prima facie showing the petitioner falls within the provisions of section 1172.6 and is entitled to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts (§ 1172.6, subds. (c) &(d)(1).)
We review de novo whether the superior court properly denied the petition at the prima facie review stage under section 1172.6, subdivision (c). (People v. Williams (2022) 86 Cal.App.5th 1244, 1251; People v. Lopez (2022) 78 Cal.App.5th 1, 14 [denial at the prima facie review stage "'"is appropriate only if the record of conviction demonstrates that 'the petitioner is ineligible for relief as a matter of law,'"'" which "'"is a purely legal conclusion . . . we review de novo"'"].
B. The Trial Court Improperly Relied on Machuca I To Determine Machuca Was the Actual Shooter
In making the determination as to whether a prima facie claim for relief has been made, section 1172.6, subdivision (d)(3), provides that the trial court may "consider the procedural history of the case recited in any prior appellate opinion." By limiting consideration of a prior appellate opinion to its procedural history, "the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions." (People v. Clements (2022) 75 Cal.App.5th 276, 292; accord, People v. Arnold (2023) 93 Cal.App.5th 376, 392; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 ["Senate Bill 775 prevents a trial court from relying on facts recited in an appellate opinion"].) This limitation applies because "issues on appeal [may] implicate different facts than a later resentencing petition." (Clements, at p. 292; see Lewis, supra, 11 Cal.5th at p. 972 ["the probative value of an appellate opinion is case-specific, and . . . 'might not supply all answers'"]; People v. Campbell (2023) 98 Cal.App.5th 350, 361 ["at the prima facie stage, trial courts should not reject petitioners' allegations on credibility grounds or engage in weighing of evidence or factfinding"].)
Machuca contends the trial court "expressly and erroneously relied on nonprocedural aspects" of our prior appellate opinion to conclude he was the actual shooter. The People speculate in response that the trial court "may have based its decision on parts of the record of conviction, including jury instructions, which conclusively demonstrate that appellant was convicted as the actual shooter with the personal, premeditated intent to kill." The People's speculation that the trial court may have considered the jury instructions is not supported by the record. The January 10, 2023 minute order reflects that the court considered "the moving papers, the People's response and the petitioner's reply brief." There is no indication that the trial court reviewed any other records, including the jury instructions or verdict forms before determining that Machuca was the actual shooter. The superior court's finding that Machuca was the actual shooter based on the factual summary from our prior appellate opinion was error.
C. The Trial Court's Reliance on Machuca I Was Harmless Because Machuca Is Ineligible for Relief as a Matter of Law
Machuca acknowledges that the jury was not instructed on the felony-murder rule or the natural and probable consequences doctrine but contends the trial court's reliance on Machuca I in summarily denying his petition "constituted structural error, making a prejudice analysis irrelevant." However, the Supreme Court in Lewis, supra, 11 Cal.5th at page 974 held that harmless error analysis applies to error at the prima facie review stage, explaining that the petitioner on appeal must show that "'there is a reasonable probability that in the absence of the error he . . . would have obtained a more favorable result.'" (See People v. Hurtado (2023) 89 Cal.App.5th 887, 893; People v. Flint (2022) 75 Cal.App.5th 607, 613 ["'a petitioner "whose petition is denied before an order to show cause issues has the burden of showing 'it is reasonably probable that if [not for the error] . . . his [or her] petition would not have been summarily denied without an evidentiary hearing.'"'"]; People v. Watson (1956) 46 Cal.2d 818, 836.)
Moreover, "[t]he concept of structural error does not apply . . . because a section [1172.6] hearing is not a criminal trial." (People v. Garrison (2021) 73 Cal.App.5th 735, 746; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 588 ["A petition under former section 1170.95 is not a criminal prosecution"].) Rather, 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."'" (Estrada v. Superior Court (2023) 93 Cal.App.5th 915, 925.) Thus, any error in applying section 1172.6 is one of state law subject to a harmless error analysis. (See Lewis, supra, 11 Cal.5th at p. 973 ["Typically, when an 'error is purely one of state law, the Watson harmless error test applies'"]; cf. People v. Gamache (2010) 48 Cal.4th 347, 396 ["structural errors not susceptible to harmless error analysis are those that go to the very construction of the trial mechanism-a biased judge, total absence of counsel, the failure of a jury to reach any verdict on an essential element"].)
The record of conviction shows the jury was not instructed on the felony-murder rule or the natural and probable consequences doctrine. Further, the jury was instructed with CALCRIM Nos. 600 (on attempted murder) and 601 (on the allegation the attempted murder was willful, deliberate and premeditated). CALCRIM No. 601 instructed the jury as to attempted murder that to find that "the defendants acted willfully if they intended to kill when they acted. The defendants deliberated if they carefully weighed the consequences for and against their choice and, knowing the consequences, decided to kill. The defendants premeditated if they decided to kill before acting." Thus, by finding Machuca guilty of attempted murder and finding true the allegation that he acted willfully, deliberately, and with premeditation, the jury necessarily concluded Machuca personally harbored an intent to kill.
The jury was also instructed on CALCRIM No. 400, which states a person may be guilty of a crime as either the perpetrator or as someone who "aided and abetted a perpetrator." However, the aiding and abetting instruction (CALCRIM 401) was modified to apply only to codefendant Price.
Accordingly, Machuca was ineligible for relief because he was convicted on a theory of attempted murder that remains valid notwithstanding Senate Bill 1437's amendments to sections 188 and 189. (See People v. Strong, supra, 13 Cal.5th 698 at p. 708 ["If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition"]; People v. Coley (2022) 77 Cal.App.5th 539, 548 [Section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine"]; People v. Harden (2022) 81 Cal.App.5th 45, 52 ["if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law"].)
D. We Lack Jurisdiction To Consider Sentencing Errors Raised for the First Time on Appeal from the Postjudgment Order
Finally, Machuca contends for the first time in this appeal that at the initial sentencing the trial court erred in imposing both a 15-year minimum parole eligibility gang enhancement under section 186.22, subdivision (b)(5), and a firearm enhancement under sections 12022.53, subdivisions (c) and (e)(1). (See § 12022.53, subd. (e)(2) ["An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense"]; People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1425 ["when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an enhancement for participation in a criminal street gang . . . in addition to an 'enhancement imposed pursuant to' section 12022.53"].)
We do not have jurisdiction to decide this issue. Generally, "[t]he 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." (People v. Farfan (2021) 71 Cal.App.5th 942, 947; accord, People v. Burns (2023) 95 Cal.App.5th 862, 865 ["Section 1172.6 does not create a right to a second appeal."].) Nor do we have jurisdiction on appeal based on Machuca's argument the sentence was unauthorized. (In re G.C. (2020) 8 Cal.5th 1119, 1122-1123, 1130 [appellate court did not have jurisdiction to correct unauthorized sentence where juvenile court failed to declare offense a misdemeanor or felony in imposing initial disposition but appeal was from later proceeding because "to invoke this rule the court must have jurisdiction over the judgment"]; People v. King (2022) 77 Cal.App.5th 629, 633 ["the trial court had no jurisdiction to entertain King's motion to vacate his sentence, and therefore this court has no appellate jurisdiction to entertain the appeal"]; People v. Moore (2021) 68 Cal.App.5th 856, 865) ["the unauthorized sentence rule constitutes a narrow exception to the forfeiture doctrine [citation], '"not to the jurisdictional requirement of a timely notice of appeal"'"].)
We therefore agree with the People that because Machuca's conviction became final in 2013, we do not now have jurisdiction to consider Machuca's new argument that the 15-year minimum parole eligibility gang enhancement under section 186.22, subdivision (b)(5), was unauthorized.
DISPOSITION
The order denying Machuca's section 1172.6 petition is affirmed.
We Concur: SEGAL, Acting P. J. MARTINEZ, J.