Opinion
B332171
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JESSE VALDEZ, Defendant and Appellant.
Tanya Dellaca, 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NOT TO BE PUBLISHED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. VA064986-01, Lee W. Tsao, Judge.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
STRATTON, P. J.
Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we review an order denying appellant's petition for resentencing brought under Penal Code section 1172.6. We affirm.
Statutory references are to the Penal Code.
BACKGROUND
On March 14, 2002, the People filed a First Amended Information charging appellant Joseph Jesse Valdez with first degree murder, attempted murder, arson of an inhabited dwelling, robbery, and evading a police officer in wanton disregard of safety. A jury convicted Valdez of murder; willful, deliberate, and premediated attempted murder; robbery; arson; and willful disregard of safety while evading police, a lesser included offense of evading an officer in wanton disregard of safety. The jury found true that Valdez committed the murder during a robbery and a burglary; Valdez personally used and intentionally discharged a gun in the commission of the murder which proximately caused the death of the victim; Valdez personally and intentionally discharged a gun proximately causing great bodily injury; Valdez personally inflicted great bodily injury in the commission of the attempted murder; and Valdez personally and intentionally discharged a gun during the robbery. We affirmed the convictions with modifications only to the sentences imposed. (People v. Valdez (July 30, 2004, B167849) [nonpub. opn.].)
Solely to provide context, we recite the facts of the convictions from our prior opinion. On July 11, 2000, the fire department was summoned to the murder victim's home, which had been set on fire. They found the victim's heavily burned body at the center of the fire in a downstairs bedroom. He had been shot multiple times and had died before the fire started. Valdez was seen in possession of the victim's credits cards, camera, calculator, and driver's license. The murder victim's possessions were later found in Valdez's home. Valdez had also attempted to use one of the victim's credit cards to purchase a pizza. In a separate incident several days later, Valdez was smoking methamphetamine with a friend and shot him. Valdez also evaded police responding to witnesses who had observed the attempted murder victim fall out of a car Valdez was driving. (People v. Valdez, supra, B167849.)
On May 26, 2022, Valdez filed a petition for resentencing as to the murder and attempted murder convictions. Valdez was represented by counsel throughout the proceedings on the petition. The parties filed briefs and provided the court with the jury instructions, verdict forms, and the Information filed January 3, 2002. The People contend Valdez is ineligible for relief because he was prosecuted as the actual shooter and the jury was not instructed on aiding and abetting or the natural and probable consequences theory. On June 23, 2023, the trial court determined that Valdez had not made a prima facie case for resentencing relief because the record of conviction established he was prosecuted and convicted as the actual shooter. The trial court found that the jury was not given instructions relating to the natural and probable consequences doctrine. The jury was instructed on felony murder, but not on aiding and abetting. The trial court found Valdez was prosecuted as the actual shooter for both convictions. The trial court denied the petition. Valdez timely appealed.
On November 27, 2023, we appointed counsel to represent Valdez on appeal. On May 31, 2024, counsel filed a no-issue brief pursuant to People v. Delgadillo. Counsel told us appellant was advised he may file his own supplemental brief within 30 days. Counsel sent Valdez transcripts of the record on appeal as well as a copy of the brief.
On May 31, 2024, this court sent Valdez notice that a brief raising no issues had been filed on his behalf. We advised him he had 30 days within which to submit a supplemental brief or letter stating any issues he believes we should consider. We also advised him that if he did not file a supplemental brief, the appeal may be dismissed as abandoned.
On July 1, 2024, Valdez filed a supplemental brief, in which he contends: 1) the trial judge acknowledged there "is evidence I'm not the actual killer"; 2) there was "no actual killer verdict form"; 3) a scent dog hit the scent of his co-defendant and no Kelly test was ever performed to see if Valdez's scent was the "cross-scent"; 4) Frank Gonzales, the lead detective from the Los Angels County Sheriff's Department, is a well-documented member of the "Vikings" deputy gang; 5) there were two people arrested for the crime but Valdez was the only one brought to trial and convicted; and 6) the trial judge's statement that there is no evidence that Valdez is the actual killer should "hold weight here, and allow for me to have a hearing to figure out who really was the killer."
People v. Kelly (1976) 17 Cal.3d 24, abrogated by statute on another point as explained in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) eliminated the natural and probable consequences doctrine as a basis for liability for murder and attempted murder. (People v. Lewis (2021) 11 Cal.5th 952, 957) (Lewis).) Petitions for resentencing carry out the intent of Senate Bill No. 1437, which was "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); Lewis, at p. 967.) Petitions under section 1172.6 address convictions where a defendant was not the shooter but was held vicariously liable on one of several theories of liability identified in the statute.
Lewis also held that "petitioners who file a complying petition are to receive counsel upon the filing of a compliant petition." (Lewis, supra, 11 Cal.5th at p. 963.) If the record establishes ineligibility for resentencing as a matter of law, the petition has been properly denied. (Id. at pp. 970-972.) However, the petition and record must establish "conclusively that the defendant is ineligible for relief." (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 . . . the petitioner was the actual killer."].) (Ibid.) When a trial court denies a section 1172.6 petition based on the failure to make a prima facie case for relief, our review is de novo. (Ibid.)
After appointment of counsel, the trial court assesses when a prima facie case for relief has been made. The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) In assessing whether a defendant has made a prima facie case for relief pursuant to section 1172.6, the trial court is entitled to review the record of conviction, which includes the jury summations, jury instructions, verdict forms, and prior appellate opinions. (Lewis, at pp. 971-972.) However, Lewis cautioned that although appellate opinions are generally considered to be part of the record of conviction, the prima facie bar was intentionally set very low. The probative value of an appellate opinion is case-specific; a trial court should not engage in" 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
We address Valdez's issues in turn. First, in denying the petition, the trial court stated in its written opinion: "The court acknowledges that the evidence raised the possibility that Petitioner was not the actual killer, and the court is mindful that it should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" The trial court's acknowledgement that no witness testified seeing Valdez commit the murder and attempted murder does not vitiate the fact that the jury was, indeed, not instructed on the natural and probable consequences doctrine, aiding and abetting, or any theory that allowed the jury to impute malice to Valdez. The trial judge's remarks about the evidence are not dispositive. That there was no "actual killer verdict form" is immaterial for the same reason.
Valdez's remaining issues present challenges to the conduct of the trial. These contentions fail. A petition for resentencing under section 1172.6 is not a vehicle to raise unrelated claims of error allegedly committed by the trial court or trial counsel. This would include error in admitting the testimony of Detective Gonzalez and in failing to get a cross-scent forensic test. It also includes the fact that only one of the two individuals charged in the Information ultimately went to trial. (People v. Farfan (2021) 71 Cal.App.5th 942, 947. [the mere filing of a section 1172.6 petition does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings]; People v. Allison (2020) 55 Cal.App.5th 449, 461 [a petition for resentencing does not provide a do-over on factual disputes that have already been resolved], disapproved on another ground in People v. Strong (2022) 13 Cal.5th 698, 718, fn. 3.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
We concur: WILEY, J., VIRAMONTES, J.