Opinion
B335089
11-19-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ASCENCIO SAUCEDO, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KA083334, Juan Carlos Domiguez, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
WEINGART, J.
Defendant Daniel Ascencio Saucedo appeals from the denial of his petition for resentencing pursuant to Penal Codesection 1172.6. We find no error and affirm.
All unspecified statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
We recite only those facts necessary to explain our resolution of this appeal. An information filed on October 16, 2008, alleged that Saucedo and Salvador Marquez murdered Kevin Castillo, with a special circumstance allegation that the murder was perpetrated by shooting from a motor vehicle at a person outside the vehicle with the intent to inflict death (§§ 187, subd. (a), 190.2, subd. (a)(21); count 1). The information further alleged Saucedo and Marquez attempted the premeditated and deliberate murders of three other persons (§§ 187, subd. (a), 664; counts 2-4).
The information also included various special allegations related to firearm use and street gangs. As those special allegations are not relevant to the issues on appeal, we do not discuss them further.
At Saucedo's trial, the court did not instruct the jury on felony murder or the natural and probable consequences doctrine. It did instruct the jury on aiding and abetting. On July 6, 2009, the jury found Saucedo guilty of one count of first degree murder and three counts of attempted premeditated and deliberate murder. The jury also found true the special circumstance allegation regarding the murder occurring by shooting from a motor vehicle. The court sentenced Saucedo to life in prison without the possibility of parole, plus additional terms of imprisonment.
On September 21, 2022, Saucedo filed a petition for resentencing pursuant to section 1172.6. The court appointed counsel for Saucedo, and the People and Saucedo's counsel submitted briefing. On September 5, 2023, the court denied the petition at the prima facie stage, finding Saucedo was ineligible for relief as a matter of law. The resentencing court stated, "The [c]ourt file reflects that [Saucedo] was convicted on a theory of being a direct perpetrator and not on a theory of natural and probable consequences or [f]elony [m]urder. The jury convicted [Saucedo] of first[ ]degree murder" and further "found that each attempted murder was willful, deliberate and premeditated."
Saucedo now appeals the denial of resentencing relief. His appointed appellate counsel filed a brief raising no issues and requesting that we exercise our discretion to independently review the record for error pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. In Delgadillo, our Supreme Court established procedures for cases in which counsel determines that an appeal from an order denying postconviction relief lacks merit. In such cases, "(1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Id. at pp. 231-232.) If the defendant does not file a supplemental brief, we "may dismiss the appeal as abandoned." (Id. at p. 232.) In that instance, we do "not need to write an opinion but should notify the defendant when [we] dismiss[ ] the matter." (Ibid.) Because a defendant who has been denied postconviction relief has no constitutional right to an appeal, we are not required to conduct an independent review of the record before dismissing the appeal, but we may conduct such a review at our discretion. (Id. at pp. 227-228, 232.)
If the defendant does file a supplemental brief or letter, we are "required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
On September 19, 2024, we notified Saucedo by letter of the no-merits brief filed by his counsel and informed him that he had 30 days to file a supplemental brief. We received Saucedo's supplemental brief on October 18, 2024.
In a declaration submitted with her brief, Saucedo's counsel averred that she sent Saucedo a copy of counsel's brief. The declaration does not state that she also sent Saucedo a copy of the record, but it is apparent from Saucedo's brief that he has a copy as his brief repeatedly cites to the record.
DISCUSSION
A. Standard of Review
"[O]ur standard of review is de novo. We independently review the denial of a resentencing petition at the prima facie stage." (People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238.)
The Legislature enacted what became section 1172.6 in 2018 as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The legislation's overall purpose was "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." (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill added section 189, subdivision (e) "to amend the felony-murder rule," and added section 188, subdivision (a)(3) "to amend the natural and probable consequences doctrine." (People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Senate Bill No. 775 (2021-2022 Reg. Sess.) later expanded section 1172.6 to allow persons convicted of attempted murder under the natural and probable consequences doctrine to apply for resentencing. (Stats. 2021, ch. 551, § 2.)
"The mental state, or mens rea, that must accompany each crime is an element of the offense. The mental state required for the crime of murder is the existence of malice, which may be either express or implied." (People v. Mumin (2023) 15 Cal.5th 176, 190.) "[M]urder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree" (§ 189, subd. (a)) and is done with "express" malice (§ 188, subd. (a)(1)).
"[A]ttempted murder requires a specific intent to kill." (People v. Mumin, supra, 15 Cal.5th at p. 190.) Formerly, such malice could be implied in an attempted murder prosecution"' "when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses."' [Citation.] [¶] . . . The natural and probable consequences doctrine provides that' "[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime."' [Citation.]" (People v. Offley (2020) 48 Cal.App.5th 588, 595.) Now, because of Senate Bill No. 775, implying malice via the natural and probable consequences doctrine can no longer support an attempted murder conviction.
As relevant here, section 1172.6 provides a mechanism for a defendant to seek resentencing where (1) the information allowed the murder prosecution to proceed under a theory of felony murder, the natural and probable consequences doctrine, or any other theory under which malice was imputed to the defendant, and/or the attempted murder prosecution to proceed under the natural and probable consequences doctrine, and (2) the defendant could not now be convicted of murder and/or attempted murder under the present law. (Id., subd. (a).)
C. Saucedo Did Not Establish a Prima Facie Case for Relief Under Section 1172.6
Saucedo does not meet the eligibility test set forth in section 1172.6, subdivision (a) because he was not prosecuted based on felony murder, the natural and probable consequences doctrine, or any other theory under which malice could have been imputed to him. Further, the jury expressly found Saucedo guilty of murder in the first degree, perpetrated by means of discharging a firearm from a motor vehicle intentionally at a person outside the vehicle with the intent to inflict death. In convicting Saucedo of three counts of attempted murder, the jury found true that each attempted murder was willful, deliberate, and premediated. These findings of express malice on the murder and attempted murder convictions make Saucedo ineligible for relief under section 1172.6.
For the reasons explained below, we reject the contrary arguments made by Saucedo in his supplemental brief that certain jury instruction issues required an evidentiary hearing pursuant to section 1172.6, subdivision (d).
1. The Jury Instructions Do Not Suggest a Possibility the Jury Imputed Malice to Saucedo
Saucedo first argues the instructions concerning aiding and abetting given at his trial may have permitted the jury to impute malice to him. In support of this assertion, he relies on People v. Maldonado (2023) 87 Cal.App.5th 1257 and People v. Powell (2021) 63 Cal.App.5th 689.
Powell and another case, People v. Langi (2022) 73 Cal.App.5th 972, involved convictions for second degree murder, which as explained above can be based on the killer acting with implied malice instead of express malice, where the court gave an aiding and abetting instruction. Both cases found that the standard aiding and abetting instruction "creates an ambiguity under which the jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice." (Id. at p. 982, citing People v. Powell, supra, 63 Cal.App.5th at pp. 712-714.) Because "the perpetrator's purpose [in a second degree murder] need not have been to kill the victim, the aider and abettor's knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill." (People v. Langi, supra, at p. 982.) Maldonado extended this logic to a first degree lying-in-wait murder, because such a crime can essentially be a second degree implied malice murder accompanied by lying-in-wait: the required" 'state of mind simply is the intent to watch and wait for the purpose of gaining advantage and taking the victim unawares in order to facilitate the act which constitutes murder. [Citation.] It does not include the intent to kill ....' [Citation.]" (People v. Maldonado, supra, 87 Cal.App.5th at p. 1263.) Thus, a conviction for first degree lying-in-wait murder can be based on evidence that the perpetrator acted with implied rather than express malice. (Id. at p. 1267.)
Powell, Langi, and Maldonado have no application to Saucedo's convictions, which were not in the second degree or potentially based on a first degree lying-in-wait theory. Instead, Saucedo was convicted of first degree murder based on an intentional killing, and convicted of willful, deliberate, and premeditated attempted murder. Saucedo does not dispute, nor could he, that if the jury found him guilty on these charges as a principal he is ineligible for relief.
To the extent the jury relied on aiding and abetting to convict Saucedo, we disagree with Saucedo that his jury was not instructed "that the only way that they could find him guilty of intent to kill[ ] would be if [Saucedo] knew of the perpetrator's unlawful purpose and specifically intended to aid in the commission of the crime." The record of conviction shows that the aiding and abetting instruction required the jury to find Saucedo acted to promote the murder and attempted murders "[knowing] that the perpetrator intended to commit the crime" and "intend[ing] to aid and abet the perpetrator in committing the crime." For the first degree murder conviction, that required finding Saucedo knew the perpetrator "unlawfully intended to kill." For the attempted murder convictions, that required finding Saucedo knew the perpetrator "intended to kill" each victim and was acting with deliberation and premeditation; in other words, with express malice. Given these requirements, there is no possibility that Saucedo was convicted on a theory that Saucedo could have assisted Marquez without knowing that Marquez intended to kill the victims.
2. CALCRIM No. 521
Saucedo next argues that CALCRIM No. 521 "misled the jury to believe that" he could be found "guilty of first degree murder as long as the jury unanimously agreed that the People proved [he] committed murder." Saucedo fails to explain how this alleged ambiguity relates to imputed malice or anything else that would suggest that Saucedo "could not presently be convicted of murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) "[S]ection 1172.6 does not permit reducing a first degree murder conviction to second degree murder." (People v. Gonzalez (2023) 87 Cal.App.5th 869, 881, fn. 15.)
In any event, Saucedo made this same claim in the direct appeal of his conviction, asserting CALCRIM No. 521 "erroneously allowed the jury to convict [him] of first degree murder without a unanimous finding that [he] committed first degree, as opposed to second degree murder." (People v. Sausedo (Nov. 17, 2010, B218982) [nonpub. opn.].) We rejected that argument, concluding after reviewing the language of the instruction that "there is no reasonable likelihood that the jury would conclude it could convict [Saucedo] of first degree murder even though some jurors believed that the defendant was guilty of only second degree murder." (Ibid.) Saucedo gives us no reason to revisit that determination.
3. The Kill Zone Instruction Did Not Permit the Imputation of Another's Malice to Saucedo
Saucedo lastly asserts the jury could have imputed malice to him on the attempted murder convictions because it received a so-called kill zone instruction. This argument fails because the kill zone theory (and the related instruction given to Saucedo's jury) is unrelated to imputed malice. Attempted murder requires a specific intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623.) The kill zone theory of attempted murder is not an exception to that requirement but rather a "theory for establishing the specific intent to kill required for conviction of attempted murder." (People v. Canizales (2019) 7 Cal.5th 591, 607.)" '[I]n a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located.'" (Ibid.) To convict a defendant of attempted murder under the kill zone theory, the jury must find that the "defendant intended to kill everyone in the kill zone as a means of killing the primary target." (People v. Mumin, supra, 15 Cal.5th at p. 211.)
The instructions given to Saucedo's jury made clear it could not find him guilty of the attempted murders unless it found that Saucedo specifically intended to kill the three attempted murder victims or intended to kill everyone within the kill zone including Castillo and the three victims named in the attempted murder counts. The instruction further made clear that the jury could not find Saucedo guilty of attempted murder if it had "a reasonable doubt whether [he] intended to kill [the named attempted murder victims] or intended to kill Kevin Castillo by killing everyone in the kill zone." By finding Saucedo guilty of the attempted murders, the jury necessarily found that he intended to kill the victims named in the attempted murder counts. Under these circumstances, Saucedo was convicted on a still-valid theory of attempted murder based on express malice, meaning he is ineligible for relief under section 1172.6 as a matter of law.
To the extent Saucedo argues the kill zone instruction misstated the law given subsequent case law developments, we disagree that this demonstrates the court erred in denying his resentencing petition at the prima facie stage. To be eligible for relief under section 1172.6, Saucedo must show that he can no longer be convicted of murder "because of changes to [s]ection 188 or 189 made effective [by Senate Bills Nos. 1437 and 775]." (§ 1172.6, subd. (a)(3).) Saucedo cannot make that showing, because neither Senate Bill No. 1437 or No. 775 made changes to the kill zone theory or to the specific intent to kill requirement for attempted murder. (See People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 936-937.)
4. Conclusion
As explained above, the jury instructions and the verdict reflect all the factual findings necessary to support the murder and attempted murder convictions under current law, and conclusively refute Saucedo's allegation that he could no longer be convicted of murder and/or attempted murder because of the changes to sections 188 and 189. (People v. Curiel (2023) 15 Cal.5th 433, 465.) Saucedo was therefore ineligible for relief as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 971.) The trial court accordingly did not err in summarily denying the resentencing petition without an evidentiary hearing. (People v. Delgadillo, supra, 14 Cal.5th at p. 233 [a defendant is not entitled to relief, and a resentencing petition properly denied at the prima facie stage, where the record of conviction makes ineligibility for relief clear].)
Finally, we decline counsel's request that we independently review the record, as nothing before us suggests such an exercise is necessary. (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The order denying Saucedo's resentencing petition is affirmed.
We concur: BENDIX, Acting P. J., KLATCHKO, J.[*]
[*] Judge of the Riverside County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.