Opinion
G061988
12-01-2023
THE PEOPLE, Plaintiff and Respondent, v. RUBEN RETANA PEREZ, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 02WF2857 Gary S. Paer, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
DELANEY, J.
In 2011, a jury convicted defendant Ruben Retana Perez of first degree murder (Pen. Code, § 187, subd. (a)) and found it true he personally used a knife in the commission of the murder (§ 12022, subd. (b)(1)). The trial court sentenced defendant to 25 years to life, plus one year for the knife enhancement. Another panel of this court affirmed the judgment. (People v. Perez (May 29, 2014, G047573) [nonpub. opn.].)
All further statutory references are to the Penal Code.
In 2022, defendant filed a petition seeking resentencing pursuant to section 1172.6 (Petition). After the trial court appointed counsel for defendant, the parties provided briefing. The trial court held a hearing at which it summarily denied the Petition, concluding defendant was ineligible for resentencing as a matter of law. It explained: the jury was instructed on a single theory of first degree murder, namely premeditated and deliberate murder, which required a finding of specific intent to kill; the instructions made no reference to imputed malice, felony murder, the natural and probable consequences doctrine, aiding and abetting or any other theory under which defendant could be someone other than the actual killer; and, thus, the jury's guilty verdict meant it concluded defendant was the actual killer and acted with an intent to kill.
Defendant timely filed a notice of appeal, and counsel was appointed to represent him. In compliance with People v. Wende (1979) 25 Cal.3d 436, and People v. Delgadillo (2022) 14 Cal.5th 216, counsel filed a brief summarizing the proceedings and facts of the case and advised the court she found no arguable issues in support of defendant's appeal. Counsel requested this court exercise its discretion to conduct an independent review of the record.
This court notified defendant he could file a supplemental brief on his own behalf, and he did so. In his supplemental brief, defendant raises several arguments concerning the trial court's denial of his Petition and his underlying conviction. Specifically, he contends: the jury instructions and the prosecutor's closing argument allowed the jury to convict him under an invalid theory of imputed malice; the trial court inappropriately used the factual information from the appellate opinion affirming his conviction; recent case law supports his conviction could have been based on an invalid theory of imputed malice; and the underlying conviction is invalid due to a lack of direct evidence and defendant's inability to testify due to a language barrier.
When a defendant files a supplemental brief after counsel finds no arguable issues on appeal of the denial of a postconviction petition under section 1172.6, "the [c]ourt of [a]ppeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (People v. Delgadillo, supra, 14 Cal.5th at p. 232.) We address defendant's arguments and, although not obligated to do so, we exercise our discretion to independently review the record. As we explain, we reject defendant's arguments and find no arguable issue. Accordingly, we affirm the postjudgment order.
DISCUSSION
For a person convicted of murder, resentencing relief under section 1172.6 is only available to those 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." (§ 1172.6, subd. (a).) Put another way, it is available only to those who could not presently be convicted of murder because of changes to sections 188 and 189, which took effect in January 2019. (§ 1172.6, subd. (a)(3).)
A trial court's denial of a resentencing petition at the prima facie stage is "appropriate only if the record of conviction demonstrates that the 'petitioner is ineligible for relief as a matter of law.'" (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) "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." (Ibid.; see §§ 188, subd. (a)(3), 189, subd. (e).)
In his supplemental brief, defendant first argues the prosecutor's closing argument at trial and the jury instructions allowed the jury to convict him under a now invalid imputed malice murder theory. Regarding the former, "'[a]ppellate review is generally limited to matters contained in the record, [and] [f]actual matters that are not part of the appellate record will not be considered on appeal ....'" (In re Bailey (2022) 76 Cal.App.5th 837, 860.) Neither party presented the prosecutor's arguments to the trial court in connection with its review of the Petition and they, therefore, are not part of the record on appeal. Thus, we do not reach defendant's related argument.
As for the jury instructions, the instructions given could not have led to a first degree murder conviction on an imputed malice theory. As the trial court noted, the jury was not instructed on felony murder, murder under the natural and probable causes doctrine, aiding and abetting, or any theory of imputed malice. Rather, it was instructed with a tailored version of CALCRIM No. 521 (First Degree Murder) which provided that to find defendant guilty of first degree murder, the jury had to find he intended to kill and acted with premeditation and deliberation. Thus, although defendant claims the jury could have convicted him under an imputed malice theory, the only route to the first degree murder verdict the jury returned was a finding that defendant acted with an intent to kill. (See People v. Washington (2017) 15 Cal.App.5th 19, 26 ["As a 'general rule,' courts presume that juries can and will dutifully follow the instructions they are given . . ."].)
It appears defendant may be conflating imputed malice with implied malice, as if they are interchangeable and equally problematic theories for upholding his sentence. The jury was instructed with CALCRIM No. 520 (First or Second Degree Murder with Malice Aforethought), which stated defendant could be found to have acted with implied malice if he, inter alia, intentionally committed an act, the natural and probable consequences of which were dangerous to human life, and he deliberately acted with conscious disregard for human life. However, implied malice is related to second degree murder, not first degree murder of which defendant was convicted. (See People v. Clements (2022) 75 Cal.App.5th 276, 299.) Further, it is distinct from the natural and probable consequences doctrine involving imputed malice which was impacted by Legislative changes. (Ibid.; People v. Gentile (2020) 10 Cal.5th 830, 850, superseded by statute on other grounds.) The definition of implied malice remains unchanged and it is still a viable theory for conviction. (§ 188; People v. Clements, supra, at p. 298.)
Equally misguided is defendant's reliance on People v. Maldonado (2023) 87 Cal.App.5th 1257. In Maldonado, the defendant, who was not the sole perpetrator, sought resentencing on a first degree murder conviction and appealed after the trial court summarily denied his petition. (Id. at p. 1259). The appellate court reversed, concluding defendant made a prima facie showing because ambiguities in the jury instructions given for aiding and abetting and lying-in-wait murder could have permitted a conviction under an imputed malice theory. (Id. at pp. 1268-1269.)
Here, the jury was not instructed on aiding and abetting or lying in wait. And none of the instructions it was given were ambiguous such that defendant could have been convicted on an imputed malice theory.
Next, concerning procedure, defendant claims the trial court inappropriately used the prior appellate opinion for factual information rather than strictly to establish the procedural history of his case. But, in its written statement of decision, the court expressly stated it relied "specifically and solely upon the jury instructions and the verdict and finding forms in this case." Therefore, the appellate opinion played no role in the court's determination.
Lastly, defendant asserts his conviction is invalid because it was based on purely circumstantial evidence and he was unable to testify at trial due to a language barrier. These are arguments that should have been raised on direct appeal from his murder conviction, not in the context of a resentencing petition appeal, so we do not address them. (See People v. Burns (2023) 95 Cal.App.5th 862, 865 [section 1176.2 cannot be used to resurrect challenge that should have been raised in direct appeal from conviction].)
Because the jury instructions and the jury's verdict demonstrate, as a matter of law, defendant was not convicted on an imputed malice theory, the trial court correctly determined he is not eligible for relief under section 1172.6. Separate from defendant's contentions, our own independent review of the record confirms counsel's assessment there were no arguable issues to raise on appeal. The court did not err in denying the Petition without further proceedings.
DISPOSITION
The order denying the Petition is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., SANCHEZ, J.