Opinion
G062087
12-18-2023
THE PEOPLE, Plaintiff and Respondent, v. PERRY VENTIGAN SINOCRUZ, Defendant and Appellant.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 94CF1558, Terri K. Flynn-Peister, Judge. Affirmed.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
OPINION
GOETHALS, ACTING P. J.
In 1995, Perry Ventigan Sinocruz was convicted by a jury of an attempted murder that took place in 1994. The jury found that in the commission of the attempted murder, Sinocruz acted with premeditation and deliberation; he personally used a firearm; and he was acting for the benefit of a street gang. The court sentenced Sinocruz to a prison term of 15 years to life for attempted murder, plus an additional five years on the firearm use enhancement. The court stayed sentencing on the gang enhancement.
In June 2022, Sinocruz petitioned the court for resentencing pursuant to former Penal Code section 1170.95 (later renumbered § 1172.6). In December 2022, the trial court denied the petition after concluding it did not set forth a prima facie case because the jury found that Sinocruz personally used a firearm in the commission of the attempted murder. The court also noted the jury had not been instructed on either the natural and probable consequences doctrine or any theory involving imputed malice. Sinocruz appeals from the court's denial of his petition.
All statutory references are to this code.
We appointed counsel to represent Sinocruz on appeal. Appointed counsel informed us he conducted an analysis of potential appellate issues, and that the case was also reviewed by a staff attorney at Appellate Defenders, Inc. Counsel filed a brief pursuant to the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (and consistent with People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738). While not arguing against his client, counsel set forth the facts of the case and asked this court to conduct its own independent review of the appellate record, which we have done. He also directed this court's attention to the following potential issue: "Did the court err by denying the section 1172.6 petition?"
Counsel advised Sinocruz of his right to file a written argument on his own behalf; he has not done so. We nonetheless exercise our discretion to conduct an independent review of the record. (People v. Delgadillo, supra, 14 Cal.5th 216, 232.)
FACTS
We derive our summary of the facts from this court's unpublished opinion in Sinocruz's first appeal. (People v. Sinocruz (Oct. 9, 1996, G017986) [nonpub. opn.].)
The Rollin Deuce Tray Crips (Crips) and the Alpha Kappa Piru Bloods (Bloods) were engaged in a feud. After a confrontation earlier in the day, Crips members drove two cars to a Circle-K and used their vehicles to block the exit of a Bloods' gang member's pickup truck. Two Crips members approached the truck, which backed away. "[Sinocruz], armed with a gun, emerged from a crowd standing in a nearby alley and fired two shots." (People v. Sinocruz, supra, G017986.) After one of the Crips members retreated, Sinocruz fired two or three more shots. One shot hit a Crips member in the back. (Ibid.)
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess., Senate Bill 1437) was enacted to limit the scope of the traditional felony murder rule. It also eliminated the natural and probable consequences theory for murder. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Pursuant to Senate Bill 1437, murder liability can no longer be "imposed on a person who [was] not the actual killer, [who] did not act with the intent to kill, or [who] was not a major participant in the underlying felony who acted with reckless indifference to human life." (Lewis, at p. 959.) Senate Bill 1437 also added section 1170.95 (later renumbered § 1172.6), which created a procedure through which a "person convicted of felony murder or murder under the natural and probable consequences doctrine" can petition for relief. (§ 1172.6, subd. (a).)
Sinocruz filed such a petition. Pursuant to section 1172.6, he was then required to make a prima facie showing in the trial court that he is entitled to the relief he seeks. (Lewis, supra, 11 Cal.5th at p. 960.) The Supreme Court observed in Lewis that "[t]he record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, at p. 971.)
The trial court, as required by the statute and Lewis, held a prima facie hearing; it then denied Sinocruz's petition. In its written ruling, the court found that Sinocruz "is ineligible for relief as a matter of law because the court did not instruct the jury as to the natural and probable consequences doctrine. Based solely on the jury instructions, it appears that petitioner argued an alibi defense (CALJIC 4.50) rather than that he was convicted under a theory of imputed malice. Petitioner was charged, tried and convicted alone and the information did not allege a target offense other than the attempted murder. [¶] A defendant convicted of attempted murder is ineligible for relief as a matter of law if the jury was not instructed with a natural and probable consequences theory."
We agree. The jury specifically found Sinocruz was guilty of an attempted premeditated murder, and personally using a firearm in the commission of that crime. Because the jury was given no instructions which involved either the natural and probable consequences doctrine or any theory of imputed malice, there is no basis to conclude Sinocruz's conviction was dependent on the intent or actions of another. He is therefore ineligible for resentencing relief as a matter of law.
Like appointed counsel, after reviewing the entire record we have found no other arguable issue on appeal.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: SANCHEZ, J., MOTOIKE, J.