Opinion
B320836
06-29-2023
THE PEOPLE, Plaintiff and Respondent, v. RICARDO MARTINEZ, Defendant and Appellant.
Stanley Dale Radtke, 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, Daniel C. Chang and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. NA068128 Judith Levey Meyer, Judge. Affirmed.
Stanley Dale Radtke, 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, Daniel C. Chang and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
In 2006, a jury found Ricardo Martinez guilty of two counts of willful, deliberate, and premeditated attempted murder, committed for the benefit of a criminal street gang. As to the first count of attempted murder, the jury found Martinez personally and intentionally discharged a firearm, which proximately caused great bodily injury to the victim. As to the second count of attempted murder, the prosecution's theory at trial was that Martinez was either the shooter or a direct aider and abettor (the driver) in a drive-by shooting that occurred the same day as the drive-by shooting at issue in the first count. The jury found Martinez was not the shooter as to the second count of attempted murder but found a principal personally and intentionally discharged a firearm, which proximately caused great bodily injury to the victim. Martinez is serving a sentence of 50 years to life in prison.
In November 2021, Martinez filed a petition for resentencing under Penal Code former section 1170.95 (now section 1172.6), a statute which authorizes relief for, among others, persons convicted of attempted murder under the natural and probable consequences doctrine. Counsel appointed for Martinez in the trial court acknowledged below (1) that Martinez was ineligible for resentencing on the first count for attempted murder because the jury found he was the actual shooter and he acted with intent to kill; (2) that the jury was not instructed on the natural and probable consequences doctrine; and (3) that the jury found Martinez guilty on the second count of attempted murder under a direct aiding and abetting theory. Notwithstanding these circumstances, defense counsel argued Martinez was eligible for relief on the second count for attempted murder, contending the jury instructions on the gang and firearm allegations permitted the jury to find him vicariously liable for the attempted murder committed by a principal, even if the jury did not find he formed the intent to kill. The trial court rejected this contention and denied Martinez's petition for resentencing without issuing an order to show cause and holding an evidentiary hearing, finding Martinez did not make a prima facie case for relief.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). In this opinion, we typically refer to the statute by its current designation, section 1172.6. Undesignated statutory references are to the Penal Code.
We affirm the order denying the petition for resentencing because the portion of the record of conviction Martinez attached to his petition shows he is ineligible for relief under section 1172.6 as a matter of law. As to the second count of attempted murder, the jury necessarily found he was a direct aider and abettor in the attempted murder who acted with express malice.
BACKGROUND
I. Trial and Direct Appeal
In 2006, then-18-year-old Martinez was tried for the attempted murder of Hon Hoeung (count 1), the attempted murder of Brandon Nannie (count 2), and shooting at an occupied motor vehicle (count 3). The prosecution presented evidence at trial indicating Martinez was the shooter in the gang-related drive-by shooting of Hoeung; and Martinez was either the shooter or the driver in the gang-related drive-by shooting of Nannie, which occurred on the same day, close in time and near the first shooting. Hoeung and Nannie were each struck by a bullet.
Martinez was 17 years old at the time of the shootings.
Martinez does not dispute that the prosecution presented such evidence of the circumstances of the shootings. A more detailed summary of the evidence presented at trial is not material to our legal analysis. As discussed below, the jury instructions given at Martinez's trial and the jury's verdicts demonstrate Martinez is ineligible for resentencing under section 1172.6 as a matter of law.
As shown in an excerpt of the reporter's transcript of the trial that Martinez attached as an exhibit to his section 1172.6 petition, the trial court instructed the jury on, among other things: (1) the elements of attempted murder, including the requisite "express malice aforethought, namely, a specific intent to kill unlawfully another human being"; (2) the allegations that the attempted murders were willful, deliberate, and premeditated (i.e., that they were "preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation"); (3) direct aiding and abetting; (4) the allegations that the defendant and/or a principal personally and intentionally discharged a firearm, which proximately caused great bodily injury to the victim; (5) the definition of a principal; and (6) the gang enhancement allegations. As Martinez acknowledged below and in this appeal, the trial court did not instruct his jury on the natural and probable consequences doctrine.
The excerpt of the reporter's transcript that Martinez attached to his section 1172.6 petition also includes the prosecutor's opening argument. The prosecutor informed the jury that in order to prove Martinez committed attempted murder, the prosecution was required to prove beyond a reasonable doubt that Martinez acted with express malice, i.e., a specific intent to kill. For each count of attempted murder, the prosecutor described the evidence that she contended showed (1) Martinez acted with express malice and (2) that the attempted murder was willful, deliberate, and premeditated. As to both counts of attempted murder, the prosecutor argued Martinez was the shooter. As to count 2, the attempted murder of Nannie, the prosecutor acknowledged there was some prosecution evidence indicating Martinez was the shooter, and some prosecution evidence indicating Martinez was the driver. The prosecutor told the jury that even if Martinez was only the driver, he aided and abetted the shooter in the attempted murder of Nannie. The prosecutor described the evidence she contended showed Martinez aided and abetted the attempted murder.
The jury found Martinez guilty of the attempted murders of Hoeung and Nannie and shooting at an occupied motor vehicle. As to both counts of attempted murder, the jury found true the allegations that the attempted murders were willful, deliberate, and premeditated. As to count 1, the jury found true the allegations that Martinez personally and intentionally discharged a firearm, which proximately caused great bodily injury to Hoeung. (§ 12022.53, subds. (b)-(d).) As to count 2, the jury found not true the allegations that Martinez personally used or discharged a firearm during the attempted murder of Nannie. As to all counts, the jury found true the allegations that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that a principal personally and intentionally discharged a firearm, which proximately caused great bodily injury to the victims (§ 12022.53, subds. (d) &(e)(1)).
In Martinez's direct appeal of his convictions, this court reduced his sentence from 60 years to life to 50 years to life due to sentencing errors, and affirmed the judgment as modified. (People v. Martinez (Dec. 20, 2007, B194330) [nonpub. opn.].)
II. Martinez's Section 1172.6 Petition
In 2018, the Legislature enacted Senate Bill No. 1437 "to amend the felony murder rule and 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." (Sen. Bill No. 1437 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &189, subd. (e).) Senate Bill No. 1437 amended sections 188 (defining malice) and 189 (felony murder) and added section 1170.95, now renumbered section 1172.6, which established a procedure for vacating murder convictions and resentencing defendants who could no longer be convicted of murder in light of the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.) On October 5, 2021, the Governor signed into law Senate Bill No. 775 which amended then-section 1170.95 to, among other things, authorize relief for persons convicted of attempted murder under the natural and probable consequences doctrine. (Sen. Bill No. 775 (2020-2021 Reg. Sess.); Stats. 2021, ch. 551, § 2.)
On November 10, 2021, Martinez, as a self-represented litigant, filed a petition for resentencing under former section 1170.95, now section 1172.6. He used a preprinted form for a petition for writ of habeas corpus but indicated he was seeking relief under then-section 1170.95 and newly enacted Senate Bill No. 775. In the petition, he asserted "the prosecutor proceeded under a natural and probable consequence theory to obtain a conviction that is now meritless." He argued malice was improperly imputed to him based solely on his participation in a crime, and the prosecution "used" the gang and firearm enhancement allegations to argue he had the specific intent for attempted murder (presumably as to count 2, the attempted murder of Nannie). He requested the trial court appoint counsel for him.
Martinez attached the following exhibits to his petition: (1) the statement of the case and statement of facts from his opening appellate brief in his direct appeal of his convictions; (2) an excerpt of the reporter's transcript of his trial, consisting of a partial reading of the jury instructions given (including those specified above) and the prosecutor's opening argument; and (3) the verdict forms.
Martinez also attached to his petition a form on which the jury submitted questions and the trial court provided responses during his trial. The jury wrote, "Counts 1 &2: Do we have to find all the questions to be 'true' in order to return a 'guilty' verdict[?]" The court responded: "No. The defendant could be found guilty and you can find all the enhancements not true." As a follow-up question regarding counts 1 and 2, the jury asked, "E.g., for questions 2-4, does he have to personally use the firearm to be guilty - what if he is a principal?" The court responded: "He does not have to personally use the firearm if you find (a) the defendant was a principal in the crime and (b) you find the 186.22 enhancement. Look at page 38, for definition of a principal." Finally, the jury asked, "If he is found not guilty for count 2 [the attempted murder of Nannie], does that disqualify him from being guilty of count 3 [shooting at an occupied vehicle]?" The court responded, "No."
The trial court appointed counsel to represent Martinez, and the district attorney filed a response to Martinez's petition for resentencing. In the response, the district attorney argued Martinez was ineligible for relief under the resentencing statute as a matter of law because (1) the jury was not instructed on a natural and probable consequences theory of liability; (2) the jury found he was the actual shooter as to count 1, the attempted murder of Hoeung; and (3) the jury found him guilty on count 2, the attempted murder of Nannie, under a direct aiding and abetting theory and necessarily found he acted with express malice. The district attorney's response indicates that the statement of facts therein is based on the following exhibits: (1) the opinion in Martinez's direct appeal of his convictions; (2) the jury instructions given at Martinez's trial; and (3) the verdict forms. These exhibits are not included with the response in the clerk's transcript before us.
Martinez, through his appointed counsel, filed a reply brief in support of his petition for resentencing. Martinez conceded he was ineligible for resentencing on count 1, the attempted murder of Hoeung, stating, the "jury found the personal use allegation true and therefore determined that he was the actual shooter and thus evidenced an intent to kill." As to count 2, the attempted murder of Nannie, Martinez acknowledged the jury was not instructed on the natural and probable consequences doctrine and found him guilty as an aider and abettor of the attempted murder. Notwithstanding that, he argued he was eligible for relief on count 2, asserting that the jury found him "vicariously liable for the shooting" based on the allegation that a principal personally and intentionally discharged a firearm, which proximately caused great bodily injury to the victim (§ 12022.53, subds. (d) &(e)(1)). He added: "This liability [for the attempted murder of Nannie] attached because the gang allegation under [section] 186.22 permitted it. In effect the gang allegation and its interplay with [section] 12022.53(d) and (e)(1) operated as a 'Natural and Probable Consequences' instruction and permitted the jury to convict the Defendant even if they did not conclude that he had formed the intent to kill." He referenced the jury's questions and the trial court's responses (set forth above).
On May 11, 2022, the trial court held a hearing to determine if Martinez made a prima facie case for relief in his petition for resentencing. The following exchange occurred between the court and defense counsel:
"The court: Are you saying that the gun was attributed to your client under a gang allegation theory, and he wasn't the actual shooter?
"[Defense counsel]: That is my contention, Your Honor, and my contention is that even though there was not a natural and probabl[e] consequences instruction, the way the instructions are written for the 186.22 and 12022.53, it implies that if you are -- it implies that since you can be vicariously found guilty of the gun, under 12022.53, because of the 186.22 allegation, it seems to imply, to me, to a jury that they don't really need to find intent on the part of the defendant, that being part of the gang and being part of the shooting is sufficient.
"The court: That's not true, and that's not how instructions are. They find the allegations after they find the crime. The crime specifically says that you must find specific intent, and even on the jury form, it says: 'Once you've found this crime, then and only then are you to determine the gun or the gang allegation.'
"So, I mean, if you're talking 'this is what I think a jury really thinks' versus 'this is what they're instructed,' they are supposed to have specific intent for the crime, itself, not just 'he's a bad dude because he's a gang member.'
"And I can't -- I can't grant something based on what we all suspect a jury might think versus what they were definitely instructed on and how the law -- and how the law approaches it.
"[Defense counsel]: I understand the court's position. I just think that this does present a conundrum for a jury, and I believe that -- because it's not like -- I understand how the process is supposed to work, but it isn't like they listen to just the instructions on murder before they make a determination as to -and not the instructions regarding the gun and gang before they make a determination.
"And so even though they are supposed to do it the way we say they're supposed to do it, the fact is that the instructions confuse the need to prove intent for the murder, in my opinion."
The trial court allowed the prosecutor to respond. As the prosecutor was summarizing the relevant instructions given to the jury, the court interjected and concluded the hearing. The court commented that the prosecutor was repeating herself, and there was too much noise for the court reporter to transcribe the hearing because the prosecutor was appearing by telephone and Martinez was participating through WebEx. The court indicated it had reviewed the parties' papers and stated, "The prima facie is denied at this point in time. You have leave to file an appeal." The same day as the hearing, the trial court issued a minute order stating, "Petition pursuant to 1170.95(a) Penal Code is denied."
DISCUSSION
Martinez contends the trial court violated his rights to procedural due process by not reviewing the entire record of conviction before it summarily denied his petition for resentencing and by not providing a statement of reasons for its decision pursuant to section 1172.6, subdivision (c). He further contends he is entitled to an evidentiary hearing under section 1172.6, subdivision (d) because the prosecution failed to demonstrate he is ineligible for relief as a matter of law and the trial court engaged in impermissible factfinding in denying the petition at the prima facie stage. For the reasons explained below, we reject Martinez's contentions and affirm the order denying his petition.
I. Section 1172.6 and Other Applicable Law
Under section 1172.6, subdivision (a), "A person 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 with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019."
Senate Bill No. 1437 added the following provision to section 188: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) The effect of this amendment was to "eliminate[ ] natural and probable consequences liability for first and second degree murder." (People v. Gentile (2020) 10 Cal.5th 830, 849 (Gentile).) As set forth above, Senate Bill No. 775 subsequently amended former section 1170.95, now section 1172.6, to authorize relief for persons convicted of attempted murder under the natural and probable consequences doctrine.
When a defendant files a facially sufficient petition under section 1172.6, the trial court must appoint counsel to represent the petitioner, allow briefing from both sides, and hold a hearing to determine whether the petitioner has made a prima facie showing for relief. (§ 1172.6, subds. (b)-(c).) As our Supreme Court explained: "While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (People v. Lewis (2021) 11 Cal.5th 952, 971.)
"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).) If the trial court does issue an order to show cause, the final step in the process is a hearing to determine if the petitioner is entitled to relief, where the trial court must vacate the petitioner's attempted murder (or murder or manslaughter) conviction and resentence him or her on any remaining counts unless the prosecution can "prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).)
"Whether the court conducted a proper inquiry under section 1172.6, subdivision (c)" at the prima facie stage-the issue before us-"is a question of statutory interpretation, which we review de novo." (People v. Harrison (2021) 73 Cal.App.5th 429, 437.)
II. Martinez Is Ineligible for Relief Under Section 1172.6 as a Matter of Law
Martinez's contention that the trial court was required to review the entire record of conviction, including "the trial transcripts and the full and complete jury instructions," before summarily denying his resentencing petition at the prima facie stage is without merit. Martinez attached to his petition a record of the relevant jury instructions given at his trial as well as the verdict forms and the prosecutor's opening argument. As explained below, these documents establish his ineligibility for relief as a matter of law. A review of other parts of the record of conviction was not necessary for the court to make its determination. Martinez did not argue otherwise below or ask the trial court to review parts of the record of conviction other than those submitted in connection with his petition.
Martinez acknowledges the trial court did not instruct his jury on a natural and probable consequences theory of attempted murder liability, and the prosecution did not advance such a theory. Rather, Martinez was prosecuted as the actual shooter or as a direct aider and abettor of attempted murder. The jury was instructed that to find him guilty of attempted murder, the jury was required to find beyond a reasonable doubt that he acted with "express malice aforethought, namely, a specific intent to kill unlawfully another human being." Martinez could be prosecuted for attempted murder under the same direct aiding and abetting theory today. (See Gentile, supra, 10 Cal.5th at p. 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"].) The amendments to sections 188 and 189 are not relevant to Martinez's case. Thus, he cannot show he "could not presently be convicted of . . . attempted murder because of changes to Section 188 or 189 made effective January 1, 2019," a statutorily mandated prerequisite for a section 1172.6 petition. (§ 1172.6, subd. (a)(3).) The trial court did not err in summarily denying his petition for failure to make a prima facie case for relief. In making this determination, the court did not engage in impermissible factfinding. Rather, the court properly found the record of conviction (i.e., jury instructions and verdicts) "refut[ed] the allegations made in the petition" that he was eligible for relief under the resentencing statute. (See People v. Lewis, supra, 11 Cal.5th at p. 971.)
Martinez cites no authority supporting his assertion that a defendant who is prosecuted as a direct aider and abettor of an attempted murder is nonetheless eligible for relief under section 1172.6 if the jury found the attempted murder was committed for the benefit of a criminal street gang and a principal (other than the defendant) personally and intentionally discharged a firearm. And we are aware of no such authority. As discussed above, to find a defendant guilty of attempted murder under a direct aiding and abetting theory of liability, the jury must find the defendant acted with express malice, i.e., the specific intent to kill, which renders the defendant ineligible for relief under section 1172.6. The record of the relevant jury instructions given at trial, that Martinez attached to his petition, demonstrates that his jury was properly instructed on these principles of law. We cannot presume-as Martinez asks us to do-that the jury ignored the instructions and found him guilty of the attempted murder of Nannie, without finding he harbored express malice, simply because the jury found the shooting was gang-related and a principal (other than Martinez) personally and intentionally discharged a firearm. The jury instructions did not allow the jury to find Martinez guilty of attempted murder under a theory in which malice was imputed to him based solely on his participation in a crime; and the jury's questions do not support Martinez's speculation that the jury failed to follow the instructions. Moreover, the jury found true the allegations that Martinez committed both attempted murders willfully and with premeditation and deliberation. The jury was instructed that to make such a finding, it had to "find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation ...."
Instead, he cites a case that has no application here, People v. Maldonado (2023) 87 Cal.App.5th 1257. There, the Court of Appeal reversed the trial court's denial of a section 1172.6 petition at the prima facie stage, concluding the jury instructions on aiding and abetting an implied malice lying-inwait murder allowed the jury to impute malice to the defendant based solely on his participation in a crime. (Id. at p. 1259.) This theory of murder presented to the jury in Maldonado did not require the jury to determine the defendant intended to kill the victim, unlike the theory of attempted murder presented to Martinez's jury. (See id. at p. 1266.)
Finally, we reject Martinez's contention that the matter must be reversed and remanded because the trial court did not "provide a statement fully setting forth its reasons" for denying the petition without issuing an order to show cause. (§ 1172.6, subd. (c).) In support of this contention, Martinez only references the portion of the reporter's transcript of the hearing where the court interrupted the prosecutor's argument and concluded the hearing stating, "The prima facie is denied at this point in time. You have leave to file an appeal." He does not reference the exchange between the court and defense counsel, quoted above, where the court rejected Martinez's argument that he had made a prima facie case for relief as to count 2, and the court stated its reasons for rejecting the argument. Specifically, the court indicated the jury instructions required the jury to find Martinez acted with specific intent to kill, and the court could not presume the jury failed to follow the instructions and found Martinez guilty of the attempted murder of Nannie without finding he acted with the specific intent to kill, based on the jury's true findings on the gang and firearm allegations. Thus, the court stated on the record its reasons for summarily denying the petition without issuing an order to show cause and holding an evidentiary hearing. There was no error.
Because the jury instructions and verdicts demonstrate Martinez is ineligible for relief under section 1172.6 as a matter of law, the trial court did not err in denying Martinez's petition for resentencing at the prima facie stage.
DISPOSITION
The May 11, 2022 order denying the section 1172.6 petition is affirmed.
We concur: ROTHSCHILD, P. J., WEINGART, J.