Opinion
B326911
01-03-2024
THE PEOPLE, Plaintiff and Respondent, v. PEDRO NAVARRO, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA435580, Terry A. Bork, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
STRATTON, P. J.
Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we review this appeal of an order denying a petition for resentencing brought under Penal Code section 1172.6. We affirm.
Statutory references are to the Penal Code. Navarro filed his petition under former section 1170.96, now recodified as section 1172.6. (Stats. 2022, ch. 58, § 10.)
BACKGROUND
On October 8, 2015, the People filed an information charging appellant Pedro Navarro with murder in violation of section 187, subdivision (a). It was further alleged Navarro personally used a deadly weapon during the commission of the offense within the meaning of section 12022, subdivision (b)(1). A jury convicted Navarro of murder and found the weapon enhancement true.
The trial court sentenced Navarro to 56 years to life in state prison. This court affirmed the judgment of conviction. (People v. Navarro (Nov. 1, 2017, B279763) [nonpub. opn.].)
The facts are brief for purposes of the resentencing petition. In the early morning hours of March 3, 2015, Navarro fatally stabbed victim Karina Velarde 29 times and then partially burned her body. At the time of her death, Velarde rented a unit from Navarro who had unsuccessfully tried to get her to vacate the unit.
On December 3, 2021, Navarro filed a petition for resentencing. The trial court appointed counsel, issued an order to show cause, and conducted an evidentiary hearing. At the evidentiary hearing, the parties and the trial court relied solely on the reporter's transcripts and exhibits from Navarro's trial. No new evidence was submitted. On November 14, 2022, the court denied the petition, finding the People had proven beyond a reasonable doubt that Navarro was the "sole and actual killer" and was therefore ineligible for relief under section 1172.6. The trial court also found appellant was ineligible for relief because the jury had not been instructed on felony murder or the natural and probable consequences doctrine. This timely appeal followed.
We appointed counsel to represent Navarro on appeal. On October 30, 2023, counsel filed a no-issue brief pursuant to People v. Delgadillo. Counsel advised us he had told Navarro he may file his own supplemental brief within 30 days. Counsel sent Navarro transcripts of the record on appeal as well as a copy of the brief.
On October 30, 2023, this court sent Navarro notice that a brief raising no issues had been filed on his behalf. We advised him he had 30 days within which to submit a supplemental brief or letter stating any issues he believes we should consider. We also advised him that if he did not file a supplemental brief, the appeal may be dismissed as abandoned.
On November 29, 2023, Navarro filed a supplemental brief, in which he contends: 1) he was entitled to have his trial judge, Judge Dennis J. Landin, adjudicate the petition for resentencing rather than Judge Terry A. Bork, who did not preside over the initial trial or impose sentence; 2) at the evidentiary hearing, the prosecutor misstated to the court there was blood found in the rear cargo department of his vehicle when the evidence at trial was that the cargo department was negative for blood; 3) at the evidentiary hearing the prosecutor misstated the knife was not excluded as a potential murder weapon when the evidence at trial was that there were no obvious blood stains on the knife; instead the knife looked a little dirty when it was found; 4) the evidence at trial was that the stabbing was done by a righthanded person and at the evidentiary hearing the prosecutor misstated that Navarro is right-handed, thereby confusing the trial court; 5) at trial the jury had asked the court if Navarro was left handed and the trial court never answered its question; and 6) at the evidentiary hearing the prosecutor argued defendant had an injury on his left hand, which was inconsistent with the expert's testimony that if a right-handed person, such as Navarro, stabbed the victim and the knife slid during the stabbing causing a cut, the cut would be on the right hand of the perpetrator.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as a basis for murder liability and limited the scope of the felony murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957) (Lewis).) Petitions for resentencing carry out the intent of Senate Bill No. 1437 which was "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." (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, at p. 967.) Senate Bill No. 1437 changed the elements of murder by limiting the circumstances in which malice can be implied. (People v. Solis (2020) 46 Cal.App.5th 762, 779.) Petitions under section 1172.6, then, address convictions where a defendant was not the killer, but was held vicariously liable on one of several theories of liability identified in the statute.
We reject Navarro's contention that he is entitled to relief. First, the People's theory at trial was that appellant was the actual killer who acted with express malice in killing the victim. Vicarious liability was not a theory presented to the jury. The prosecutor's closing argument could not have been more clear on this point: "[Navarro] treated her as trash when he threw her body up in the mountains, and he treated her like trash when he tried to burn her after he had stabbed her 29 times in such a fit of rage that 29 stab wounds entered into her." "[Navarro] made the choice to stab the victim over and over. He made the choice to burn-attempt to cover up his tracks by burning her body. He made the choice to drive up to the mountains to throw her away like trash." Navarro was not convicted based on any theory of vicarious liability; he was charged with and convicted of killing the victim himself.
Second, the jury was not instructed on the natural and probable consequences doctrine, the felony murder rule, any theory of aiding and abetting or any other theory of liability for murder based on participation in a different crime. The jury was instructed on first degree murder with malice aforethought (CALCRIM No. 520). Because no vicarious liability was charged or argued, he is not eligible for relief under section 1172.6. (Lewis, supra, 11 Cal.5th at p. 957; 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"].)
Third, Navarro contends he was entitled to have the bench officer who presided over his trial adjudicate his petition for resentencing. Navarro failed to raise this challenge in the trial court and so it is forfeited. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1146.)
Finally, Navarro points out what he perceives to be weaknesses in the evidence pointing to his guilt and misstatements in the prosecutor's argument to the judge who adjudicated the petition for resentencing, thereby "confusing" the judge. We reject his contentions. Navarro stipulated that the trial court could base its ruling on the transcript of the original trial. No additional evidence was submitted to the court. The petition to recall sentence under section 1172.6 is not another opportunity to challenge the original judgment on other grounds. (People v. Farfan (2021) 71 Cal.App.5th 942, 947 [the mere filing of a section 1172.6 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings]; People v. Allison (2020) 55 Cal.App.5th 449, 461 [a petition for resentencing does not provide a do-over on factual disputes that have already been resolved], disapproved on another ground in People v. Strong (2022) 13 Cal.5th 698, 718, fn. 3.) Section 1172.6 does not afford a retrial on every element of a murder conviction. Rather, Navarro must allege facts that, if true, would demonstrate that he could not presently be convicted of murder "because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3), italics added.) He has not done so. Further, the trial court made a cogent ruling based on the reporter's transcript and the parties' briefing; there is no evidence the trial court was "confused" by the People's oral argument at the evidentiary hearing.
We are not required to independently review the denial of a petition for resentencing and we decline to do so. (Delgadillo, supra, 14 Cal.5th at p. 226.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
We concur: GRIMES, J., VIRAMONTES, J.