Opinion
G062961
10-09-2024
THE PEOPLE, Plaintiff and Respondent, v. LUIS VALENZO ROMERO, Defendant and Appellant.
Cindy Brines, 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NOT TO BE PUBLISHED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. 05CF1872, Patrick H. Donahue, Judge. Affirmed with directions.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
DELANEY, J.
Defendant Luis Valenzo Romero appeals from an order denying his petition for resentencing under Penal Code 1172.6 following an evidentiary hearing. His appointed counsel filed a brief asking us to follow the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and People v. Anders (1967) 386 U.S. 738. In compliance with People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), this court notified Romero he could file a supplemental brief on his own behalf and he did so. After reviewing Romero's arguments and the record, as well as exercising our discretion to conduct an independent review of the record, we affirm. Notwithstanding that result, we direct the trial court to correct clerical errors in the minutes of the July 6, 2007 original sentencing hearing and the abstracts of judgement.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, a jury convicted Romero of two counts of willful, deliberate, and premeditated attempted murder (§§ 187, 664), three counts of aggravated assault (§ 245, subd. (a)(1)), two counts of shooting from a vehicle (§ 12034, subd. (c)), two counts of shooting at an inhabited dwelling (§ 246), and one count of street terrorism (§ 186.22, subd. (a)). It also found true certain firearm and gang related enhancements. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).) The trial court sentenced him to a total of 32 years to life in prison, with various concurrent determinate terms, as well as other terms imposed and stayed pursuant to section 654.
On appeal, another panel of this court directed the correction of sentencing credits for Romero's codefendant, Jose Demetrio Montiel, but otherwise affirmed the judgment. (People v. Romero (Sept. 30, 2008, G038925) [nonpub. opn.].)
In 2022, Romero filed a petition seeking resentencing pursuant to section 1172.6 (Petition). The trial court appointed counsel, the prosecution agreed he made a prima facie showing of entitlement to relief, and the court issued an order to show cause. Prior to the order to show cause hearing, the parties filed written briefs asserting their respective positions.
Defendant filed the Petition in January 2022 pursuant to former section 1170.95. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6, with no substantive changes to the text. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to section 1172.6 throughout.
In arguing Romero is, beyond a reasonable doubt, guilty of attempted murder under amendments made to sections 188 and 189 which took effect in January 2019, the prosecution relied on the evidence presented to the jury at Romero's trial. We briefly summarize the evidence, excluding certain gang expert testimony and a statement made by Montiel to law enforcement, both of which the trial court ultimately did not consider in evaluating the Petition.
One day in June 2005, C.G. was riding his bicycle in the City of Tustin when a group of African-American males, later identified as Gangster Disciples (GD) gang members, shot at him with paintballs. Shortly thereafter, C.G. explained what occurred to a Brown Barrio Revolution (BBR) gang member. In turn, that person called a fellow BBR gang member, Montiel, about the situation involving GD, their rival gang. Montiel, Romero, and others arrived, and armed with golf clubs, they set off to the vicinity of the paintball attack.
When the rival gangs encountered each other, words were exchanged and a fight ensued. GD gang members disarmed the BBR gang members and beat one of them unconscious. Montiel and Romero fled to Montiel's car which was parked nearby.
With Montiel driving and Romero in the passenger seat, the car sped toward GD gang members standing in the street. Tires screeching, it swerved and hit two GD gang members, with the force causing one to fly up in the air and land on an adjacent parked car. Down the street, the car came to a stop in front of a house where M.L. and his father were standing outside. M.L. saw the barrel of a shotgun pointing out the passenger side window toward him. The car made a u-turn and headed back toward the GD group. Montiel pointed a shotgun out the driver side window and fired two shots. Two GD gang members were shot, one in the back and legs, and the other in the foot. Forensic testing later found gunshot residue on Romero's shirt.
Based on the evidence, and acting as an independent factfinder, the trial court concluded the prosecution met its burden of proving beyond a reasonable doubt that Romero aided and abetted the attempted murders committed by Montiel. It issued a written statement of decision outlining the elements of aiding and abetting, providing its analysis, and denying the Petition.
Romero timely appealed.
DISCUSSION
"Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) . . . narrowed or eliminated certain forms of accomplice liability for murder. (See Stats. 2018, ch. 1015.)" (People v. Curiel (2023) 15 Cal.5th 433, 440.) More specifically, and among other things, it "imposed a new requirement that, except in cases of felony murder, 'a principal in a crime shall act with malice aforethought' to be convicted of murder. (§ 188, subd. (a)(3).) 'Malice shall not be imputed to a person based solely on his or her participation in a crime.' [Citation.] One effect of this requirement was to eliminate liability for murder as an aider and abettor under the natural and probable consequences doctrine." (Curiel, at p. 449.)
Direct aiding and abetting and implied malice aiding and abetting remain viable theories for establishing murder liability. Our high court aptly summarized the requisite proof for each of these theories in Curiel: "In general, to establish liability for murder under the theory of direct aiding and abetting, 'the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.' [Citation.] . . . [A]n aider and abettor may be liable for murder under a theory of implied malice where the aider and abettor aids in the commission of a life-endangering act, with '"knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life."'" (Curiel, supra, 15 Cal.5th at pp. 466-467.)
To the best we are able to understand Romero's challenge, it focuses on a portion of the trial court's analysis which relied on M.L.'s testimony that before making a u-turn to head back toward the GD gang members, Montiel's car stopped where M.L. and his father were standing, and the passenger, identified by others as Romero, pointed a shotgun at M.L. Seconds later Montiel, the driver, fired two shots, leading the court to conclude that Romero must have given the gun to Montiel to do the shooting.
Romero questions the "reliability and accuracy" of M.L.'s testimony, claiming "it is clear from others [sic] testimony that [M.L.] was mistaken about the things he saw and also some of the timing in the way that he described things." He also contends there is no testimony to support the conclusion that he pointed the shotgun at M.L., or that he handed the shotgun to Montiel, making it unreasonable to conclude he aided and abetted the attempted murders.
Regarding the former, on appeal from denial of a resentencing petition after an evidentiary hearing, we review the trial court's factual findings for substantial evidence. (People v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).) "Under this familiar standard, '"we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (Ibid.) It is not our role to judge credibility or reweigh the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27; People v. Montanez (2023) 91 Cal.App.5th 245, 271.)
Regarding the latter, having reviewed the record in full, there was substantial evidence from which an independent factfinder could have found all the essential elements of aiding and abetting attempted murder beyond a reasonable doubt. (See Curiel, supra, 15 Cal.5th at p. 466 [describing elements of aiding and abetting].) Some of the evidence may have required inferences to be drawn, and some of it may have been circumstantial, but it was nonetheless sufficient to support the trial court's conclusions. (See Vargas, supra, 84 Cal.App.5th at p. 951 ["Substantial evidence also '"includes circumstantial evidence and any reasonable inferences drawn from that evidence"'"]; People v. Sifuentes (2022) 83 Cal.App.5th 217, 233-234 [reversal for insufficient evidence only warranted if it appears that "'"'"upon no hypothesis whatever is there sufficient substantial evidence to support"'"'" factfinder's conclusion].)
Although not obligated to do so, we have separately exercised our discretion to independently review the record. (Delgadillo, supra, 14 Cal.5th at p. 232.) That review confirms counsel's assessment there were no arguable issues to raise on appeal. The trial court did not err in concluding Romero is ineligible for resentencing pursuant to section 1172.6 and denying the Petition.
Notwithstanding the foregoing conclusion, our review of the record has revealed clerical errors in the trial court minutes from the original sentencing hearing which took place in 2007, as well as the abstracts of judgment. More specifically, the minutes and abstracts do not accurately reflect the trial court's oral pronouncements of the sentences on counts 6, 7, 8, and 9. The reporter's transcript of the proceedings indicates the following sentences as to those counts: on count 6 (former § 12034, subd. (c)), "the midterm of five years plus the five years under [section] 186.22(b)(1)(B)[,] for a total of 10 years," all stayed pursuant to section 654; on count 7 (former § 12034, subd. (c)), "the midterm of five years and the five year enhancement under [section] 186.22(b)(1)(B)[,] for a total of 10 years," all stayed pursuant to section 654; on count 8 (§ 246), "15 years to life pursuant to [section] 186.22(b)(4)(B)," stayed pursuant to section 654; and on count 9 (§ 246), "15 year[s] to life . . . pursuant to [section] 186.22(b)(4)(B)," stayed pursuant to section 654.
The trial court amended the indeterminate and determinate abstracts of judgment in January 2008. None of the changes made at that time concerned counts 6, 7, 8, or 9.
The parties agree the court minutes and abstracts of judgment should be modified to conform to the oral pronouncement of sentence, and we so direct the trial court. (See People v. Delgado (2008) 43 Cal.4th 1059 [court's oral pronouncement governs over abstract]; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement controls over discrepancy in court's minute order]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may direct trial court to correct abstract to reflect oral judgment].)
DISPOSITION
The postjudgment order is affirmed. The trial court is directed to correct the minutes of the July 6, 2007 sentencing hearing to reflect the following sentences on counts 6 through 9, and to amend the abstracts of judgment as necessary to so conform: on count 6, five years plus a five-year enhancement pursuant to section 186.22(b)(1)(B), all stayed pursuant to section 654; on count 7, five years plus a five-year enhancement pursuant to section 186.22(b)(1)(B), all stayed pursuant to section 654; on count 8, 15 years to life pursuant to section 186.22(b)(4)(B), all stayed pursuant to section 654; and on count 9, 15 years to life pursuant to section 186.22(b)(4)(B), all stayed pursuant to section 654. The trial court is further directed to forward a certified copy of the corrected abstracts to the Department of Corrections and Rehabilitation.
WE CONCUR: O'LEARY, P. J. GOETHALS, J.