Opinion
B318830
02-08-2023
THE PEOPLE, Plaintiff and Respondent, v. EMILIANO NEVAREZ SOTO, Defendant and Appellant.
Richard B. Lennon and Nancy Gaynor, 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NOT TO BE PUBLISHED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. A534493, Juan Carlos Dominguez, Judge. Affirmed.
Richard B. Lennon and Nancy Gaynor, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION AND PROCEDURAL BACKGROUND
In 1985, a jury convicted defendant and appellant Emiliano Nevarez Soto of second degree murder (Pen. Code, § 187, subd. (a)), with true findings that he personally used a firearm and personally inflicted great bodily injury (§§ 12022.5, 1203.075). The trial court sentenced him to 15 years to life on the murder, and enhanced the sentence by 2 years for the gun use.
All undesignated statutory references are to the Penal Code.
In 2021, Soto petitioned the trial court for resentencing under former section 1170.95. The original sentencing judge was deemed no longer available, and the case was transferred to Judge Juan Carlos Dominguez, who appointed counsel for Soto and set a briefing schedule. The prosecutor's Response to Petition argued Soto was ineligible for relief because he was the actual killer, and the jury had not been instructed on felony murder, natural and probable consequences, or any form of aiding and abetting liability. The prosecutor appended to his Response this court's opinion affirming the judgment of conviction and the complete set of jury instructions given in the case.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. We hereafter refer to the statute as section 1172.6.
Soto's attorney then filed a Petition for Resentencing, arguing Soto was entitled to relief because he filed a petition claiming he was convicted under a natural and probable consequences or second degree felony murder theory of culpability, a statement in the opinion on direct appeal that he was the actual killer does not preclude relief, and relief is available even when no felony murder or natural and probable consequences instructions are given as long as the instructions otherwise permit imputation of malice. In the petition, Soto's attorney conceded the jury was not instructed on aiding and abetting, natural and probable consequences, or a felony murder theory of liability.
The trial court denied Soto's petition, concluding he was the actual killer, convicted on a theory of being the direct perpetrator and not on any felony murder or natural and probable consequences theory.
Soto timely appealed, and we appointed counsel to represent him. On September 26, 2022, appellate counsel filed a brief raising no issues and asking us to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) On October 3, 2022, we sent Soto a letter informing him that he had 30 days to file a supplemental brief. On October 14, 2022, Soto filed a supplemental brief raising several arguments. Following our analysis of Soto's supplemental brief and our independent review of the record, we affirm the trial court's order denying relief.
We exercise our discretion to independently review the record. (See People v. Delgadillo (2022) 14 Cal.5th 216, 232.)
SENATE BILL 1437 AND SECTION 1172.6
The Legislature enacted Senate Bill 1437 (SB 1437) "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); accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
SB 1437 also added section 1170.95 to the Penal Code which, as mentioned above, was later renumbered to section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This section permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437's changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).) A petition for relief under section 1172.6 must include a declaration by the petitioner that he or she is eligible for relief based on all the requirements of subdivision (a), the superior court case number and year of the petitioner's conviction, and a request for appointment of counsel, should the petitioner seek appointment. (§ 1172.6, subd. (b)(1).)
Subdivision (c) of section 1172.6 provides: "Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor's response is served. These deadlines shall be extended for good cause. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so."
DISCUSSION
In his supplemental brief, Soto argues his appellate attorney was ineffective by failing to communicate with him in his first language of Spanish or adequately obtain an interpreter to assist in his representation. In support of this contention, Soto reiterates his argument, raised in the trial court, that he is eligible for relief under section 1172.6.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsel's performance was deficient and that he was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) First, to establish deficient performance, a defendant must show that counsel's representation was objectively unreasonable "under prevailing professional norms." (Id. at p. 688.) Second, a defendant can show prejudice where there is "a reasonable probability"-meaning "a probability sufficient to undermine confidence in the outcome"- "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694; see also People v. Goldman (2014) 225 Cal.App.4th 950, 957.)
As the trial court correctly noted, the record demonstrates as a matter of law Soto is ineligible for section 1172.6 relief. The jury was instructed only on theories of express or implied malice direct liability. The jury was never instructed on any of the murder liability theories the Legislature has deemed legally invalid through its enactment of section 1172.6. (See id., subd. (a)(1) [relief only available to individuals convicted under natural and probable consequences doctrine or felony murder rule].) The only possible inference from the record is that Soto was convicted of murder on a theory that remains valid under current law. Soto therefore cannot demonstrate that he was in any way prejudiced by counsel's performance. Given the circumstances, there is nothing counsel could have done to obtain a more favorable outcome for Soto. For these reasons, we reject Soto's contention that his appellate attorney has provided ineffective assistance, as well as his assertion that he is entitled to section 1172.6 relief.
Soto is incorrect in asserting that section 1172.6 abolished all second degree murder liability. (See § 189, subd. (b); see also § 190.)
For these same reasons, we reject Soto's assertion that reversal is required because his due process rights have been violated.
Soto requests that this court consider whether he is eligible for resentencing under Assembly Bill No. 124 (2021-2022 Reg. Sess.; Stats. 2021, ch. 695) (AB 124). Effective January 1, 2022, that legislation amended section 1170 to make a low-term sentence presumptively appropriate where any of certain specified circumstances was a "contributing factor in the commission of the offense," including where the defendant was a "youth" at the time of the offense. (§ 1170, subd. (b)(6) &(b)(6) (B); Stats. 2021, ch. 695, § 5.3.) In his brief, Soto notes that he was 23 years old when the murder of which he was convicted occurred. AB 124 is inapplicable to Soto for two reasons. First, AB 124 amended section 1170, the statute that deals with determinate sentencing. (See ibid.) The new ameliorative law is thus facially inapplicable to Soto's murder conviction, for which he received an indeterminate sentence. (See § 190, subd. (a) ["Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life."].) Second, because Soto's judgment is final, he is not entitled to the retroactive benefit of AB 124. (See In re Estrada (1965) 63 Cal.2d 740, 744 [ameliorative amendment applies to nonfinal judgments].)
Soto also asks this court to consider whether there is a clerical error in the record indicating he was sentenced to 25 years to life rather than 15 years to life. We have reviewed the record and it correctly indicates that his sentence was 15 years to life, plus the 2 year firearm enhancement.
In addition to having considered the issues raised in Soto's supplemental brief, we have also independently examined the entire record, and are satisfied no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 278-279 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The order denying Soto section 1172.6 relief is affirmed.
We concur: COLLINS, Acting P.J., STONE, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.