Opinion
E080052
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MADRIGAL, Defendant and Appellant.
Savannah Montanez and Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Lynne G. McGinnis, Ksenia Gracheva, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. INF066892, John D. Molloy, Judge.
Savannah Montanez and Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Lynne G. McGinnis, Ksenia Gracheva, and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I.
INTRODUCTION
Defendant and appellant Antonio Madrigal appeals the trial court's order summarily denying his Penal Code section 1172.6 (formerly section 1170.95) petition to recall his premediated attempted murder (§§ 664/187, subd. (a)) conviction and for resentencing. On appeal, defendant contends the trial court violated his statutory and constitutional rights by denying his section 1172.6 petition at the prima facie stage because the People failed to submit any briefing to refute his allegations, the court failed to explain its reasoning in denying the petition, and the court did not examine the underlying record. Although the trial court procedurally erred, we find the error to be harmless and affirm the order.
Unless otherwise specified, all future statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10), without substantive changes to the statute's content. We hereafter cite to section 1172.6 for ease of reference.
II.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only the facts and procedural history relevant to our resolution of this appeal. Because the record here does not contain a complete transcript of defendant's trial, we take judicial notice and consult portions of the record submitted in connection with defendant's direct appeal, as well as our prior nonpublished opinion. (See People v. Madrigal (Feb. 13, 2014, E056964) (Madrigal I); Evid. Code, § 452, subd. (d)(1) [permitting judicial notice of "[r]ecords of . . . any court of this state"].)
Defendant, whose moniker is "Criminal," is a member of the "Varrio Palmas" street gang. Jose J. is a member of a rival gang, "Barrio San Rafael." On the evening of September 19, 2009, at a playground in Palm Springs, "Criminal" shot Jose J. in the leg in a drive-by shooting incident. (Madrigal I, supra, E056964.) Defendant shot at Jose J. four to five times.
On April 24, 2012, a jury convicted defendant of deliberate and premeditated attempted murder (§§ 664/187, subd. (a), count 1); assault with a firearm (§ 245, subd. (a)(2), count 2); being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 3); and participation in a street gang (§ 186.22, subd. (a), count 4). The jury found true allegations as to both counts 1 and 2 that defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)); he personally used a firearm (§§ 12022.5, subd. (a) &1192.7, subd. (c)(8)); and he personally inflicted great bodily injury on a person not an accomplice (§§ 12022.7, subd. (a) &1192.7, subd. (c)(8)). As to count 1, the jury also found he personally and intentionally discharged a firearm (§§ 12022.53, subd. (c) &1192.7, subd. (c)(8)); he personally and intentionally discharged a firearm causing great bodily injury to another person not an accomplice (§§ 12022.53, subd. (d) &1192.7, subd. (c)(8)); and he acted as a principal in association with a street gang with the intent to promote criminal conduct by street gang members (§ 12022.53, subd. (e)).
In a separate proceeding on April 25, 2012, the trial court found true that defendant had suffered a prior prison term (§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subds. (c), (e)(1) &1170.12, subd. (c)(1)) for shooting at an inhabited dwelling (§ 246).
On June 22, 2012, the trial court sentenced defendant on count 1 to a total term of 55 years to life: 15 years to life, doubled to 30 because of his strike prior, plus a 25-year-to-life enhancement for personal use of a firearm causing great bodily injury. On count 3, the court sentenced defendant to a consecutive determinate term of eight years four months (three years, doubled to six because of his strike prior), plus 16 months for his street-gang conviction in count 4 and an additional one-year enhancement for the strike prior. As to count 1, the court imposed but stayed pursuant to section 654 the sentences for the section 12022.5, 12022.7, and 12022.53, subdivision (c) allegations. Similarly, the court imposed but stayed the sentence and related allegations for count 2.
Defendant appealed, arguing his sentence on count 4 for active gang participation should have been stayed pursuant to section 654. We agreed with the parties and modified the judgment to stay the sentence on count 4. In all other respects, we affirmed the judgment. (See Madrigal I, supra, E056964.)
On August 10, 2022, defendant, representing himself, filed a petition for resentencing under section 1172.6. In the petition, he alleged that an information was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or another theory under which malice is imputed; that he was convicted of attempted murder following a trial; and that he could not presently be convicted of attempted murder because of changes made to sections 188 and 189. In support, defendant attached copies of the jury instructions and verdict forms from his trial, a question asked by the jurors, and a portion of the trial transcript that shows the court and counsel discussing the jury question.
The jurors submitted the following question to the trial court: "Are the only options for count 1 ([a]ttempted murder) guilty or not guilty if it is based solely on aiding and abetting?" The court responded: "Please refer to CALCRIM 220, 400, & 401."
On September 16, 2022, the trial court appointed counsel to represent defendant and set the matter for a hearing.
The hearing was held on October 21, 2022, prior to any briefing by the parties. The prosecutor indicated that the parties had discussed defendant's eligibility for relief and requested the court deny defendant's petition. The prosecutor argued that defendant was statutorily ineligible for relief because he was convicted of attempted premeditated murder, the jury was not instructed on felony murder or the natural and probable consequences doctrine, and the prior opinion and jury instructions showed that defendant was the actual shooter. Defense counsel agreed, stating: "I have concur [sic] that to be accurate. I'll submit." The trial court then denied defendant's petition, stating "[t]he matter is denied as the defendant is statutorily ineligible." Defendant timely appealed.
III.
DISCUSSION
Defendant argues the trial court violated his statutory and constitutional rights by denying his section 1172.6 petition at the prima facie stage because the People failed to submit any briefing to refute his allegations, the court failed to independently consider additional documents from the record of conviction, and the court failed to explain its reasoning in denying the petition.
A. Standard of Review
We review de novo whether the trial court conducted a proper inquiry as to whether a prima facie case for relief had been established under section 1172.6. (People v. Harrison (2021) 73 Cal.App.5th 429, 437; People v. Coley (2022) 77 Cal.App.5th 539, 545 (Coley).) Likewise, "[w]e review the interpretation of a statute de novo." (People v. Gonzalez (2023) 87 Cal.App.5th 869, 880.)
B. Legal Background
Senate Bill No. 1437 limited accomplice liability under the felony-murder rule and eliminated 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. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis).) Senate Bill No. 1437 did this by amending section 188, which defines malice, and section 189, which defines the degrees of murder and limits the circumstances under which a person may be convicted of felony murder. (Stats. 2018, ch. 1015, §§ 2 &3.)
Senate Bill No. 1437 also added what is now section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10; see § 1172.6, subd. (a); Lewis, supra, 11 Cal.5th at p. 959; People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) amended section 1172.6 to expand those eligible for relief to, among others, persons convicted of attempted murder based on the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 1, subd. (a); see § 1172.6, subd. (a); People v. Hurtado (2023) 89 Cal.App.5th 887, 891 (Hurtado); Coley, supra, 77 Cal.App.5th at p. 548.) Under section 1172.6, "person[s] convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter," may file a petition to have that conviction vacated under certain circumstances. (§ 1172.6, subd. (a).)
If a section 1172.6 petition contains all the required information, including "[a] declaration by the petitioner that the petitioner is eligible for relief" (§ 1172.6, subd. (b)(1)(A), the trial court must appoint counsel, if requested (§ 1172.6, subd. (b)(3)). After service of the petition, the prosecutor shall file and serve a response. The petitioner may file and serve a reply after the response is served. (§ 1172.6, subd. (c).) After receiving a petition containing the required information, "the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.'" (Strong, supra, 13 Cal.5th at p. 708, citing § 1172.6, subd. (c).) If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).) The bar for this prima facie showing was "'intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972.) If the petitioner makes a prima facie showing he is eligible for relief under section 1172.6, the court shall hold an evidentiary hearing. (§ 1172.6, subds. (c) &(d)(1).) At this hearing, either party may present new evidence and the prosecution bears the burden of proving the petitioner could still be convicted beyond a reasonable doubt. (§ 1172.6, subd. (d)(3).)
However, a trial court's failure to comply with these statutory requirements is harmless if the record of conviction establishes that a defendant is ineligible for section 1172.6 relief as a matter of law. (See Lewis, supra, 11 Cal.5th at p. 973.) Our Supreme Court has held that a trial court's statutory omissions at the first step process under section 1172.6 are not state or federal constitutional violations. (Lewis, at p. 973; see Hurtado, supra, 89 Cal.App.5th at p. 893.) Hence, a trial court's failure to follow the procedures enacted in section 1172.6 is analyzed for prejudice under the state law standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Lewis, at pp. 973974.)
"A petitioner is ineligible for resentencing as a matter of law if the record of conviction conclusively establishes, with no factfinding, weighing of evidence, or credibility determinations, that (1) the petitioner was the actual killer, or (2) the petitioner 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 petitioner was a major participant in the underlying felony and acted with reckless indifference to human life, or (4) the petitioner acted with malice aforethought that was not imputed based solely on participation in a crime." (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) The record of conviction includes the trial court's own documents, jury summations, jury instructions, verdict forms, and prior appellate opinions. (Lewis, supra, 11 Cal.5th at pp. 971-972.) If the record contains facts refuting the allegations in the petition, the court may make a credibility determination adverse to the petitioner. (Id. at p. 971.)
C. Analysis
Defendant contends that the trial court erred in denying his section 1172.6 petition at the prima facie stage because the People did not file and serve responsive briefing, the court did not appear to consider any additional documents from the record of conviction, and the court failed to provide a substantive statement of reasons for denying the petition. We agree with defendant that the trial court failed to properly comply with the statutory requirements under section 1172.6. Notwithstanding the trial court's failure, we find the error harmless. Even if the court complied with the statutory requirements, there is no reasonable possibility that the court would have issued an order to show cause because defendant was ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 971; see Hurtado, supra, 89 Cal.App.5th at p. 893.)
In this case, after defendant filed his in propria persona petition for resentencing, the trial court appointed counsel and scheduled a date for a hearing. In support of his petition, defendant attached copies of the aiding and abetting jury instructions (CALCRIM Nos. 400 and 401) and verdict forms from his trial, a question asked by the jurors relating to aiding and abetting, and a portion of the trial transcript where the parties discussed the juror's question. The People did not file a response to the petition.
At the hearing on the petition on October 21, 2022, the prosecutor and defense counsel appeared. The prosecutor indicated that the parties had discussed defendant's eligibility for relief and requested the court deny the petition. The prosecutor stated as follows: "Again, Your Honor, the opinion and the jury instructions were forwarded to [defense counsel] earlier. The opinion showing that the defendant was the actual shooter. Jury convicted him of attempted murder [with] premeditation[,] assault with a deadly weapon, felony possessing, gang related, personal use of a firearm allegations. No instructions regarding natural and probable consequences or felony murder. He's statutorily ineligible. We do ask the petition be denied." Defense counsel replied, "I have concur [sic] that to be accurate. I'll submit." The trial court summarily denied the petition, finding defendant to be statutorily ineligible.
In addition to statements made by the prosecutor and defense counsel at the hearing on defendant's petition, the record shows that defendant was the actual shooter who shot at the victim, a rival gang member, four to five times. Relief is not available to defendants convicted of attempted murder who are the actual shooters. (Hurtado, supra, 89 Cal.App.5th at p. 893.) Furthermore, the trial court's instructions to the jury on attempted murder (CALCRIM No. 600) and attempted murder with deliberation and premeditation (CALCRIM No. 601) did not include the natural and probable consequences doctrine, an instruction on felony murder, or an instruction allowing the jury to impute malice. The instructions required the jury to find defendant had a specific intent to kill and find that he harbored express malice aforethought.
Defendant does not qualify for relief under the unambiguous terms of section 1172.6. It is undisputed that defendant was not convicted of attempted murder under the natural and probable consequences doctrine, rather, he was convicted of attempted murder as an aider and abettor found to be acting with the intent to kill.(Coley, supra, 77 Cal.App.5th at p. 548 [holding section 1172.6 "applies by its terms only to attempted murders based on the natural and probable consequences doctrine"].) Aiding and abetting remains a viable theory of attempted murder. (People v. Williams (2022) 86 Cal.App.5th 1244, 1258 [individual convicted of murder as an aider and abettor is "ineligible for section 1172.6 relief as a matter of law"]; accord People v.
The trial court here instructed the jury with the aiding and abetting instructions as there was evidence at trial that there were two people in the vehicle during the drive-by shooting.
Estrada (2022) 77 Cal.App.5th 941, 945 (Estrada) [murder conviction based on direct aiding and abetting with intent to kill is ineligible for section 1172.6 relief].) Here, the jury instructions show the jury was not instructed on a natural and probable consequences theory or under the felony-murder rule. Rather, the trial court instructed the jury on direct perpetrator liability or direct aider and abettor liability-each of which required a specific intent to kill.
The trial court instructed the jury with CALCRIM Nos. 400 and 401, on the theory of direct aiding and abetting an intended crime, as well as CALCRIM No. 600, which advised the jury that an attempted murder conviction required a finding that "[t]he defendant intended to kill [the victim]." The trial court also gave CALCRIM No. 601, which informed the jury that if it found defendant guilty of attempted murder, it had to decide whether the People had proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. That instruction told the jury that "[t]he defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting."
Importantly, the jury was not instructed with CALCRIM Nos. 402 and 403, which contain the natural and probable consequences doctrine for nontarget crimes. These instructions are appropriate whenever the prosecution's theory is that any of the crimes charged were committed as a natural and probable consequence of the target crime. (Estrada, supra, 77 Cal.App.5th at p. 947 [discussing jury instruction bench notes that delineate when particular instructions should be given].)
Based on the instructions given, the jury found defendant guilty of attempted murder, and also found true the allegation that defendant committed the attempted murder willfully, with deliberation and premeditation, as those terms were defined in CALCRIM No. 601. The record of conviction thus establishes as a matter of law that defendant was not found guilty of first degree attempted murder based on the natural and probable consequences doctrine because the jury was not instructed on that doctrine. (Cf. Coley, supra, 77 Cal.App.5th at p. 548 [trial court not required to grant resentencing on attempted murder count where the record showed the jury was not instructed on the natural and probable consequences doctrine].) Instead, the jury necessarily found defendant himself acted with an intent to kill, which renders him ineligible for relief as a matter of law under section 1172.6.
Citing People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado) and People v. Langi (2022) 73 Cal.App.5th 972 (Langi), in his reply brief, defendant argues the aiding and abetting instructions (CALCRIM Nos. 400 and 401) "can permit a jury to impute malice to the defendant, even where no instructions on the natural and probable consequences doctrine were given."
A similar argument was considered and rejected in Estrada, supra, 77 Cal.App.5th 941. There, the trial court concluded the defendant, who was convicted of first degree murder, was ineligible for resentencing "as a matter of law because the record demonstrated he was convicted as an aider and abettor." (Id. at p. 943.) The appellate court affirmed, finding that even though the trial court had instructed the jury with the language in CALCRIM No. 400 that defendant argues is problematic here, that language alone was insufficient to find that the jury was instructed on the natural and probable consequences doctrine where the trial court had only given CALCRIM No. 401 on direct aiding and abetting and not CALCRIM Nos. 402 and 403 on the natural and probable consequences doctrine. (Estrada, at pp. 946-947.) We find Estrada persuasive on this point. (See People v. Johnson (2016) 62 Cal.4th 600, 638-641 [where jury was instructed with an old version of CALCRIM No. 400 that included "'equally guilty'" language, there was no reasonable likelihood the jury would have understood the equally guilty language to allow them to base the defendant's liability for first degree murder from the mental state of the actual shooter, rather than on the defendant's own mental state in aiding and abetting the killing, where the jury was also instructed with CALCRIM No. 401].)
Defendant's reliance on Langi, supra, 73 Cal.App.5th 972 and Maldonado, supra, 87 Cal.App.5th 1257, is unavailing. Those cases assumed that aiding and abetting an implied malice murder can involve the imputation of malice based on participation in a crime even when no instructions have been given on the natural and probable consequences doctrine. (See Langi, at pp. 982-983 [jury instructions on aiding and abetting an implied malice second degree murder created ambiguity that did not require finding of intent to kill or conscious disregard of risk]; Maldonado, at p. 1259 [jury instructions on aiding and abetting an implied malice lying-in-wait murder allowed the jury to impute malice to the defendant based solely on his participation in a crime].) But Langi and Maldonado do not apply here because those cases involve implied malice murder, which does not require the jury to find an intent to kill. (Coley, supra, 77 Cal.App.5th at p. 547; People v. Powell (2021) 63 Cal.App.5th 689, 711-712.)
The offense of attempted murder, by contrast, did require the jury to find defendant acted with the intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623 ["Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing."]; People v. Smith (2005) 37 Cal.4th 733, 739 [For purposes of the attempted murder offense, "[i]ntent to unlawfully kill and express malice are, in essence, 'one and the same.'"].) In addition, the jury was instructed that to find defendant guilty as a direct aider and abettor, it was required to find defendant knew the perpetrator intended to attempt to kill the victim, he intended to aid and abet the perpetrator in attempting to kill the victim, and he did by word or conduct aid the perpetrator in attempting to kill. And, in finding the attempted murder was willful, deliberate, and premeditated, the jury was required to find, and did find, that defendant intended to kill when he acted, carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill and did so before acting. The fact that the jury asked questions during deliberations regarding the aiding and abetting instructions does not establish that the jury found defendant guilty as an aider and abettor under the natural and probable consequences doctrine rather than as a direct perpetrator or direct aider and abettor.
In finding defendant guilty of first degree attempted murder (§§ 664, 187, subd. (a)), the jury necessarily determined defendant acted with the intent to kill. The jury's findings that defendant had the intent to kill as evidenced by the jury instructions and its verdict refute the allegations in the petition for resentencing and demonstrate defendant was not eligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 971; People v. Soto (2020) 51 Cal.App.5th 1043, 1055.)
"'"[I]f the record . . . 'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner.'"' [Citation.]" (Hurtado, supra, 89 Cal.App.5th at p. 893, quoting Lewis, supra, 11 Cal.5th at p. 971.) Hence, "[a]s the attempted murderer, [defendant] is 'ineligible for relief' as 'a matter of law,' and 'there is no reasonable probability [defendant] would have obtained a more favorable result if'" the trial court had conducted an evidentiary hearing or properly followed the procedures outlined in section 1172.6; "consequently, the trial court's errors were 'harmless.'" (Hurtado, at p. 893, italics omitted, quoting People v. Mancilla (2021) 67 Cal.App.5th 854, 864.) We reject defendant's claim that his due process rights were violated when the court failed to fully explain its reasonings for denying his petition and when the court presumably failed to consider his entire record of conviction before denying the petition. Even if the trial court had reviewed briefing from the parties or the underlying record and fully explained its reasoning, there is no reasonable probability that an order to show cause would have been issued because the record of conviction conclusively demonstrates that defendant is ineligible for relief as a matter of law.
We also reject appellate defense counsel's contention during oral argument that we should find the errors in this case to be structural. As previously noted, our Supreme Court in Lewis explained that a trial court's failure to comply with the statutory requirements of section 1172.6 is analyzed for prejudice under the state law standard of Watson, supra, 46 Cal.2d at p. 836. (Lewis, supra, 11 Cal.5th at pp. 973-974.) Lewis also concluded that a trial court's statutory omissions at the first stage under section 1172.6 are not state or federal constitutional violations. (Lewis, at p. 973; see Hurtado, supra, 89 Cal.App.5th at p. 893.)
Appellate defense counsel at oral argument also complained that the process utilized by the trial court in this case does not provide a sufficient record for defense appellate attorneys to act on in filing their briefs. Although we agree and remind trial courts to adhere to the procedures articulated in section 1172.6 and Lewis, we cannot find there is a reasonable probability that an order to show cause would have been issued absent the errors because the record of conviction conclusively demonstrates that defendant is ineligible for relief as a matter of law.
IV.
DISPOSITION
The trial court's order denying defendant's section 1172.6 petition is affirmed.
We concur: RAMIREZ P. J., McKINSTER J.