Opinion
2 Crim. B324373
04-15-2024
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO JAMES VALENZUELA, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. BA418654, Henry J. Hall, Judge
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Alejandro James Valenzuela appeals the trial court's order denying his petition for resentencing under Penal Code section 1172.6. He contends the trial court erred in summarily denying the petition at the prima facie stage because the trial court relied on facts outside the record of conviction without holding an evidentiary hearing. Respondent correctly concedes the error. We reverse and remand the case for further proceedings.
All further statutory references are to the Penal Code.
Factual and Procedural Background
In 2015, appellant and a co-defendant were tried, by jury, for the murder of Efrain Cervantes in a drive-by shooting. The jury acquitted appellant of first degree murder and was unable to reach a verdict on whether the offense constituted second degree murder. After the mistrial and pursuant to a plea bargain, appellant pleaded no contest to voluntary manslaughter and admitted that the crime was gang-related. He received the agreed-upon sentence of 16 years.
Appellant's co-defendant, Ricardo Nieves, was convicted of first degree murder (§§ 187, 189) and sentenced to an indeterminate term of 50 years in state prison. We affirmed Nieves' conviction in an unpublished opinion. (People v. Nieves (Jan. 23, 2017, B268349).)
In 2022, appellant filed a section 1172.6 petition for resentencing. The trial court appointed counsel to represent appellant. After reviewing the prosecution's response to the petition and appellant's reply, the trial court summarily denied it in a written order.
The trial court's written order indicates that the court reviewed the transcript of appellant's trial and made findings of fact based appellant's testimony and that of other witnesses. It concluded appellant facilitated Nieves' shooting because he knew Nieves was armed, understood that people are often killed in a drive-by shooting, and intended to assist Nieves in killing the victim. Based on these facts, the trial court concluded appellant would not have been tried on a felony murder or natural and probable consequences theory but instead tried as a direct aider and abettor who acted with actual malice. Because that theory of liability is still permissible, the court concluded appellant is not eligible for resentencing under section 1172.6.
Discussion
As applicable here, section 1172.6 provides that a person convicted of manslaughter may be eligible for resentencing when all of the following conditions apply: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime .... (2) The petitioner . . . accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder .... (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
The statute further provides that, when a petition has been filed meeting the statutory requirements, the trial court must appoint counsel, direct the prosecution to respond to the petition and allow the petitioner to reply, and then hold a hearing to determine whether the petitioner has made a prima facie case for relief. (§ 1172.6, subds. (b)(3), (c).) In making the prima facie determination, the trial court may consider the "record of conviction" to "distinguish petitions with potential merit from those that are clearly meritless." (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) However, this inquiry is limited. The trial court is required to make a preliminary assessment of whether the petitioner would be entitled to relief if the factual allegations made in the petition are proved. (Ibid.) At this stage, however, the trial court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.) We independently review a trial court's determination that on whether a petition has made the required prima facie showing. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
The trial court here based its order on "the record in this case, including the available reporter's daily transcripts of [appellant's] trial which ended in a mistrial." It then summarized some of the evidence concerning appellant's involvement in the shooting and concluded, "[t]here can be no question but that [appellant] was a direct aider and abettor ...."
In reaching this conclusion, however, the trial court made numerous factual findings including: (1) appellant suspected from the beginning that his co-defendant intended to commit a drive-by shooting; (2) appellant knew his co-defendant was armed with a hand gun and knew how to disengage the safety; (3) appellant knew drive-by shootings frequently end in a killing; (4) appellant drove to the victim's location and stopped his car for the purpose of allowing the co-defendant to shoot the victim. The trial court drew the inference that appellant harbored an intent to kill because he was present when Nieves, the co-defendant, received the gun, because Nieves told appellant that "something" was going to happen, and because "there is no other purpose to taking a loaded semi-automatic firearm into the territory of a rival gang."
It is not possible, however, to make these factual findings or draw these inferences without weighing the evidence and deciding that appellant's trial testimony disclaiming any knowledge or intent to kill was not credible. While the record contains evidence that could be said to support the trial court's factual findings, this petition is still at the prima facie stage, where the weighing of evidence is not permitted. Appellant's guilty plea to voluntary manslaughter included no admission of actual malice. (§ 192 ["Manslaughter is the unlawful killing of a human being without malice"].) He was acquitted of first degree murder. In sum, no jury has found that appellant acted with actual malice or directly aided and abetted the murder.
Under these circumstances, had the People elected to retry appellant on the murder charge, they could have proceeded on a natural and probable consequences theory. The prosecution at a retrial could have offered a jury the option to convict appellant of aiding and abetting an assault with a firearm, the natural and probable consequence of which was death. In fact, the prosecutor at appellant's trial asserted that theory of guilt in closing argument. Appellant's jury was also instructed that implied malice could be proven through the natural and probable consequences doctrine.
The record of conviction thus does not eliminate the possibility that appellant accepted the plea offer in lieu of being retried for second degree murder on a natural and probable consequences theory. (§ 1172.6, subd. (a)(1), (a)(2).) The conclusion that he was a direct aider and abettor who harbored actual malice could only be arrived at by weighing the evidence and making credibility determinations, which are not permitted at the prima facie stage. (Lewis, supra, 11 Cal.5th at pp. 971972.) The trial court erred in summarily denying the petition. Consequently, the matter must be remanded for an evidentiary hearing. (§1172.6, subd. (d)(3).) We express no opinion concerning the outcome of that proceeding.
Disposition
The order denying the petition for resentencing is reversed. The matter is remanded with instructions to issue an order to show cause and hold an evidentiary hearing in accordance with section 1172.6, subdivision (d).
We concur: GILBERT, P. J. CODY, J.