Opinion
F085000
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH GARLAND WILEY, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. CF95544553. Michael G. Idiart, Judge.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 1996, appellant and defendant Joseph Garland Wiley (appellant) was convicted of two counts of premeditated attempted murder. He was sentenced to 17 years plus two life terms, and this court affirmed the judgment on direct appeal.
In 2022, appellant filed a petition for resentencing pursuant to Penal Code section 1172.6 and alleged he was convicted of premeditated attempted murder based on imputed malice. The trial court appointed counsel, conducted a hearing, found his petition failed to state a prima facie case, and held he was ineligible for resentencing as a matter of law. Appellant was not present at the hearing where the court made the prima facie determination.
All further statutory citations are to the Penal Code unless otherwise indicated. Appellant filed his petition in 2022 pursuant to section 1170.95. As will be discussed below, the statute was substantively amended effective January 1, 2022, and renumbered as section 1172.6 without further change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.) As such, we refer to the subject statute by its current number throughout this opinion, except where otherwise indicated.
On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted a supplemental brief, and argues the trial court improperly held the prima facie hearing when he was not personally present. We will address appellant's contentions and affirm.
The following facts are from this court's nonpublished opinion in appellant's direct appeal in People v. Wiley (Aug. 26. 1998, F027670), which the prosecution attached as an exhibit in support of its opposition to appellant's petition for resentencing. After notice to both parties and without objection, this court has taken judicial notice of our records in the direct appeal. (Evid. Code, §§ 450, 452, subd. (d), 459.) In reviewing a section 1172.6 petition, the court may rely on "the procedural history of the case recited in any prior appellate opinion." (§ 1172.6, subd. (d)(3); People v. Clements (2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 406, fn. 9.) The role of the appellate opinion is limited, however, and the court may not rely on factual summaries contained in prior appellate decisions or engage in fact finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) While we have recited the factual statement from appellant's direct appeal, we will not rely on that statement to resolve the issues raised in this appeal.
"At approximately 10:30 p.m. on July 17, 1995, Argimiro Garcia and his friend Benustino Delatorre were sitting and drinking beer in front of Garcia's home in Fresno. Delatorre's 1979 gold Corvette was parked in the street in front of Garcia's house. As Garcia and Delatorre visited, appellant and a companion walked into the street in front of the house. Street lights illuminated the area. Appellant loudly asked, '[Whose] car is this?' Garcia and Delatorre responded, 'Not ours.' Appellant asked, 'Whose shit is this?' Garcia and Delatorre stated, 'Not ours. A friend of ours who went to the store to get some beer.' Appellant said, '[b]ullshit' and pulled a [handgun] from under his shirt. Appellant's companion pulled out a knife. Appellant ordered Delatorre to give him the car keys, pointed the gun at Delatorre[,] and pulled the trigger of the gun with his right hand. The gun failed to fire. Delatorre told appellant to take the car and threw his keys to appellant. Appellant then threw the keys to his companion. Appellant ordered Delatorre to lie down on his back and put his hands behind his head. Delatorre complied while appellant kept the gun trained on him. Delatorre's attention was focused on appellant's face and gun.
"As appellant's companion attempted to start Delatorre's car, Garcia started to walk toward his house. Appellant issued repeated orders to stop but Garcia continued to walk toward his house. Appellant pulled back the slide of his gun, ejecting a cartridge from the weapon. Appellant hit Garcia in the forehead with the tip of the gun, pointed the gun at Garcia's head[,] and pulled the trigger of the weapon, which again failed to discharge. Appellant became angry, cursed, stepped back and told Garcia, 'Lay on the floor or I'm going to kill you.' Garcia refused and appellant again approached him, pointed the gun at Garcia's head[,] and pulled the trigger. Garcia knelt down and ignored appellant's order to 'go over there' by Delatorre. Appellant then pointed the gun at Delatorre's chest and pulled the trigger of the gun [again], but the gun did not discharge.
"Appellant ordered Garcia to give him his wallet and his keys. Garcia gave appellant his keys and wallet, which contained approximately $30. Removing the money from the wallet, appellant asked Garcia, 'That's all you got?' [Appellant] threw the wallet at Garcia, who was still lying face up on the ground. Garcia's attention was focused on appellant's face and weapon.
"Appellant's companion started and turned off Delatorre's Corvette[, then] came up to appellant. In response to appellant's request for Delatorre's wallet, Delatorre threw $8 at appellant. Appellant's companion picked up the money. The companion then told Delatorre to give him his gold chain, but appellant did not pick up the chain after it was thrown to him. Appellant gave his gun to his companion stating, 'Okay, here's the gun. As soon as I start the car, kill them.' Appellant started Delatorre's car, and appellant's companion pointed the gun at Garcia and Delatorre and pulled the trigger once or twice. However, the gun still failed to fire. Appellant's companion jumped in Delatorre's car, stood up in the car, and pointed the gun at Garcia and Delatorre. Appellant then drove away.
"At 10:41 p.m., Fresno Police Officers Glen Andree and Timothy Hahn arrived at the scene. [Garcia and Delatorre gave descriptions of the two suspects, their appearances and clothing, and the type of gun that was used. Each victim stated he would be able to positively identify the perpetrators.] [¶] ... [¶]
"Fresno police recovered a nine-millimeter cartridge from the area where the instant offenses occurred.
"At approximately 12:05 a.m., appellant was admitted to the University Medical Center emergency room. He had sustained a gunshot wound to each of his wrists and another wound to one of his legs. At approximately 12:24 a.m., Fresno Police Officer Michael Kirby arrived at the scene of a vehicle collision involving Delatorre's Corvette. A nine-millimeter shell casing was found at the site of the vehicle.
"At approximately 12:35 a.m., Fresno Police Office[r] Gary Beer [interviewed] appellant at the Medical Center. Appellant told the officer he was shot while standing in the front yard of a friend's house. Appellant . then ran to the residence of a neighbor who transported him to the Medical Center in a black Chevrolet El Camino.
"Officer Hahn subsequently transported Garcia to the Medical Center, and Garcia contacted appellant in his hospital room.. Garcia recognized appellant ... 'right away.' Appellant said, 'Hi' to Garcia, who asked appellant, 'You recognize me, huh?' Garcia positively identified appellant as one of the perpetrators and told the police, 'Yeah, I see him.' At approximately [1:00] a.m., Delatorre was transported to the Medical Center, where he immediately recognized and positively identified appellant as one of the perpetrators.
"Police ultimately returned the Corvette to Delatorre. Officers found blood on the passenger door and a screwdriver inside the car. The blood matched . appellant['s type]. Neither the blood nor the screwdriver had been in the car prior to the instant offenses. At approximately 12:30 p.m. on July 19, . Officer Joaquin Jay contacted appellant at the Medical Center. After waiving his constitutional rights, appellant told the officer he had been shot during a drive-by shooting, that two unidentified Black males had driven him to the hospital in a gold Corvette, that his blood would be on the passenger side of the vehicle, and that he did not know why he had lied about being transported to the hospital in an El Camino. Appellant denied carjacking the Delatorre vehicle and indicated the victims had merely identified him by his hair style. Appellant then stated the victims could not have identified him by his hair style because he had worn a hat.
"Less than two months later, in August 1995, Garcia [stated he] recognized appellant at the preliminary hearing. At trial, Garcia positively identified appellant and stated that when he had identified appellant at the hospital and ... recognized appellant at the preliminary hearing, he was 'one hundred percent sure' of who he was. [¶] .. [¶ ]
"At trial, the parties stipulated that on the day of the preliminary hearing, appellant was positioned at counsel['s] table with a blackboard between him and the witnesses in an effort to obscure him from both witnesses so they could not see him that day. The parties also stipulated 'neither Mr. Garcia nor Mr. Delatorre were asked during this testimony at the preliminary hearing to look at [appellant] to see if they could identify him that day.'
"At trial, Iqbal Sekhom, a criminalist[,] ... testified that the nine-millimeter cartridge recovered from the scene of the crime had misfired in a nine-millimeter [handgun] and had been extracted without firing.
"Defense [Evidence]
"Appellant's defense [was the victims] misidentified ... [him]. The sole defense witness was Matthew Sharps, .. a cognitive psychologist[, who] testified that a variety of factors may have adversely affected the ability of Garcia and Delatorre to accurately and reliably identify appellant as the perpetrator.... [¶] On cross-examination, Dr. Sharps conceded some impairment in the ability of the victims to make an identification would not necessarily render their identifications of appellant inaccurate."
PROCEDURAL BACKGROUND
On September 22, 1995, a first amended information was filed in the Superior Court of Fresno County charging appellant with counts 1 and 2, attempted premeditated murder of, respectively, Delatorre and Garcia (§§ 664/187); count 3, carjacking (§ 215, subd. (a)); and counts 4 and 5, robbery of, respectively, Delatorre and Garcia (§§ 211/212.5, subd. (c)). As to all counts, it was alleged appellant personally used a firearm (§ 12022.5, subd. (a)).
Trial and Jury Instructions
On December 3, 1996, appellant's jury trial began.
As relevant herein, the jury was instructed with CALJIC Nos. 8.66 and 8.11 as to the elements of counts 1 and 2, attempted murder: (1) a direct but ineffectual act done by one person towards killing another human being; and (2) the person committing such act "harbored expressed malice aforethought, namely, a specific intent to kill unlawfully another human being," and malice was express "when there is manifested an intention unlawfully to kill another person."
The jury was further instructed with CALJIC No. 3.31: "The crime of attempted murder requires the specific intent to kill unlawfully another human being."
The jury also received CALJIC No. 8.67, that if it found appellant guilty of attempted murder, it had to determine whether it was willful, deliberate, and premeditated, and the People had the burden of proof beyond a reasonable doubt." 'Willful' means intentional. 'Deliberate' means formed or arrived at or determined upon as a result of careful thought and the weighing of considerations for and against the proposed course of action. 'Premeditated' means considered beforehand." "If you find that the attempt to commit murder was preceded and accompanied by a clear, deliberate attempt to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate and premeditated murder." (CALJIC No. 8.67.)
The jury was not instructed on aiding and abetting, the felony-murder rule, the natural and probable consequences doctrine, target and nontarget offenses, conspiracy, or any other theory of imputed malice.
Convictions and Sentence
On December 10, 1996, appellant was convicted of counts 1 and 2, premeditated attempted murder, and counts 3, 4, and 5; the personal use enhancements were found true for all counts (§ 12022.5, subd. (a)).
On January 14, 1997, the trial court sentenced appellant to an aggregate term of 17 years plus two life terms as follows: life in prison with the possibility of parole for count 1, plus four years for the personal use enhancement; a consecutive identical term for count 2; a consecutive upper term of nine years for count 3, with the term for the personal use enhancement stayed; the term imposed for count 4 also stayed; and a concurrent term for count 5.
Direct Appeal
On August 26, 1998, this court filed the nonpublished opinion that affirmed the judgment on direct appeal, and rejected appellant's claims of instructional error and ineffective assistance. (People v. Wiley (Aug. 26. 1998, F027670).)
PETITION FOR RESENTENCING
On January 27, 2022, appellant filed a petition, in propria persona, for resentencing of his attempted premeditated murder convictions and requested appointment of counsel.
Appellant's supporting declaration consisted of a preprinted form where he checked boxes that stated (1) a complaint, information, or indictment was filed against him 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, or attempted murder the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial at which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The trial court appointed counsel to represent appellant.
The People's Opposition
On March 22, 2022, the prosecution filed opposition and argued appellant's convictions for attempted premeditated murder were not based on the natural and probable consequences doctrine, and the jury's verdict showed that it found appellant acted with the intent to kill. In support of the opposition, the prosecution attached as exhibits the instructions given at appellant's jury trial, the verdict forms, and this court's opinion that affirmed the convictions in appellant's direct appeal, and requested the trial court review these documents and deny the petition.
THE TRIAL COURT'S HEARINGS
On August 12, 2022, the trial court convened an initial hearing on appellant's petition. Deputy Public Defender Chris Irwin appeared for appellant, who was in prison and not present.
The trial court set a date for the hearing on whether appellant's petition stated a prima facie case. Irwin asked the court to order appellant transported from prison for the prima facie hearing, and he would prepare the transportation order for the court's signature and present it to the sheriff's department for processing. The court agreed.
On September 20, 2022, the prosecution filed a letter brief with the trial court, stating that appellant did not have the constitutional right to be personally present at the prima facie hearing because it was not a critical stage in the proceedings.
The Trial Court's Ruling on Appellant's Absence
Also on September 20, 2022, the trial court convened the hearing on whether appellant's petition stated a prima facie case. Deputy Public Defender Irwin again appeared for appellant, who was not present.
Irwin stated appellant was in prison. The court asked whether counsel had "some form of [section] 977 approval by him?" Irwin replied: "I have not spoken to [appellant] directly. I know he does want to be here," and said, "I have just sent him a letter yesterday with my evaluation of the case, so that may change his posture about wanting to be here."
Section 977, subdivision (b) codifies a defendant's right to be present at certain stages of felony proceedings, including at the time of imposition of sentence, and sets forth the circumstances under which a defendant may waive that right.
The trial court asked both parties, "So what do you folks think I should do today?" Irwin said he would submit on the prosecutor's response, and "then I'll ask to set a date for a hearing on that prima facie, hoping to get [section] 977. If we don't, I believe we can have him here either via video or in person." The court asked if Irwin would prepare the order, and he said yes.
The prosecutor argued appellant did not have a right to be personally present for the prima facie hearing because "this is a question of law," and his "presence or lack thereof adds nothing to this proceeding. I believe setting another hearing, transporting him, is simply not necessary, and we would ask to move forward on the merits today." Irwin replied, "It may not assist the [c]ourt or [the prosecutor], but it certainly assists [appellant] and his understanding of why things were happening, if he's personally present."
The trial court decided that it was "going to proceed, meaning that I'm going to decide that this is a matter of law. There's nothing that he can provide us by way of information. And so I'm going to proceed with the hearing."
The Prima Facie Determination
The trial court proceeded with the hearing and asked the parties to address whether appellant's petition stated a prima facie case. Irwin objected to any reliance on the factual statement in the appellate opinion or the transcript from appellant's parole hearing to make the prima facie determination, because those documents were not part of the record of conviction. Counsel stated he had reviewed the jury instructions, "and the requisite jury instructions are simply not there."
The prosecutor argued the trial court could rely on the opinion from appellant's direct appeal and the jury instructions given at his trial. The prosecutor stated appellant "simply wasn't convicted based on felony-murder rule, natural and probable consequences doctrine, or imputed malice. He was found guilty based on his own malice as found by the jury."
The Trial Court's Ruling
The trial court denied appellant's petition and stated it had only considered the jury instructions from his trial. Based on those instructions, the court found it was clear the prosecution "proceeded on a traditional intent to kill," and not on either the felony-murder rule or the natural and probable consequences doctrine. While appellant's petition alleged he could not be convicted of attempted murder under the amended versions of sections 188 and 189, "that was not the case. The jury instructions proceeded simply on the theory of malice under the intent to kill," and appellant was ineligible for resentencing as a matter of law.
On September 21, 2022, appellant filed a timely notice of appeal.
DISCUSSION
I. Delgadillo / Wende
As noted above, appellate counsel filed a brief with this court pursuant to Delgadillo and Wende. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. This court sent appellant an order that, pursuant to Delgadillo, the appeal would be dismissed as abandoned if he failed to submit a letter brief within 30 days. On May 1, 2023, appellant filed a supplemental brief with this court in response to our Delgadillo order. We thus turn to his arguments. (People v. Delgadillo, supra, 14 Cal.5th at pp. 231-232.)
II. Appellant's Contentions
Appellant raises one issue in his supplemental brief, and argues the trial court committed reversible error when it denied his section 1172.6 petition without his personal presence. Appellant argues the hearing was a critical stage of the proceedings, and his right to counsel was also denied because his attorney did not demand his presence at the hearing.
Appellant recounts what occurred at the hearings on August 12 and September 20, 2022, disputes the statements made by his attorney, and states that he advised his attorney during a telephone call "that I wanted to be there at those court hearings." Appellant complains that "receiving a letter with my attorney's evaluation of the case" did not change his intent and demand to be personally present at all hearings on his petition, and the court's decision to address the merits resulted in "violation after violation" of his constitutional rights. Appellant asserts he is entitled to "automatic reversal" because his petition was denied before the appointment of counsel, and the trial court held the hearings without his personal presence.
Appellant also complains that at the September 20, 2022, hearing, there was an "admission of a probation violation [sic] probable cause." The only matter before the trial court, and that it ruled upon, was whether appellant's section 1172.6 petition for resentencing stated a prima facie case for relief.
A. Section 1172.6 and Critical Stages
" 'A defendant has the constitutional right to be personally present in court "where necessary to protect the defendant's opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding."' [Citations.] The right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. [Citation.] The state constitutional right to be present is generally coextensive with the federal due process right." (People v. Basler (2022) 80 Cal.App.5th 46, 57 (Basler).)
"Critical stages of a defendant's criminal prosecution include the imposition of sentence, a sentence modification hearing, and resentencing. [Citations.] The defendant can waive his right to be present, but the waiver must be 'voluntary, knowing and intelligent.'" (Basler, supra, 80 Cal.App.5th at p. 57.)
In Basler, defendant filed a petition for resentencing of his murder conviction under former section 1170.95. The trial court found the petition stated a prima facie case, and issued an order to show cause. At the evidentiary hearing, the court acted as an "independent fact finder" and denied the petition on the merits. Defendant was not present at the evidentiary hearing but represented by his attorney, who acknowledged defendant had not waived his presence but also stated that his presence was not required. (Basler, supra, 80 Cal.App.5th at p. 50.)
Basler held an evidentiary hearing under section 1172.6 constituted a critical stage in the criminal proceedings, and defendant's state and federal constitutional rights were violated because he had the right to be present or competently waive his presence. (Basler, supra, 80 Cal.App.5th at pp. 58-59.)
"[Defendant] had already made out a prima facie case[,] ... entitling him to an evidentiary hearing at which the court was to 'determine whether to vacate the murder [or] attempted murder ... conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.' [Citation.] At that hearing the prosecution bore the burden to prove 'beyond a reasonable doubt' that [defendant] was ineligible for resentencing. [Citation.] The statute authorizes both parties to 'offer new or additional evidence to meet their respective burdens.' [Citation.] This is 'akin to a plenary sentencing hearing' and thus a 'critical stage' in the criminal process even though it prevents imposition of a sentence greater than that originally imposed." (Basler, supra, 80 Cal.App.5th at p. 58, italics in original.)
Basler further held the violation of the defendant's constitutional right to be personally present had to be assessed under Chapman v. California (1967) 386 U.S. 18, 24, and the error was not harmless beyond a reasonable doubt. (Basler, supra, 80 Cal.App.5th at pp. 59-60.) Defense counsel did not indicate he discussed the evidentiary hearing with defendant or present a waiver from him, and there was no evidence that defendant knew he had the right to be present. (Id. at p. 59.) In addition, "[t]he entire purpose of the ... resentencing hearing was for the court to consider whether to vacate [defendant's] conviction and recall [his] sentence, including by reviewing the record and taking new evidence, if offered, on the issue of [defendant's] actions and mens rea on the night in question. The question may well turn on disputed issues of fact 'about which [defendant]-as a participant in the events in question-may well have had something to say.' [Citation.] We agree that ... '[t]he trial court may, or may not, have chosen to believe what [defendant] might have said, if he said anything, but we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome.'" (Ibid.)
B. Analysis
Basler has not been extended to find the hearing on the section 1172.6 prima facie determination is also a critical stage. In contrast to the evidentiary and resentencing hearing addressed in Basler, the prima facie determination is a question of law, and the trial court may deny a petition if the petitioner is ineligible for resentencing as a matter of law based on the record of conviction, and without making any factual findings. (Lewis, supra, 11 Cal.5th at p. 966.)
Assuming without deciding that the prima facie determination may also be considered a critical stage, the alleged violation of appellant's constitutional right to be present at that hearing is harmless beyond a reasonable doubt under Chapman. The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (Lewis, supra, 11 Cal.5th at p. 971.) The court may review the record of conviction that allows it "to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that ... culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Lewis, at pp. 971-972 &fn. 6.) The jury instructions are part of the record of conviction and may be reviewed to make the prima facie determination. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251-1252; People v. Offley (2020) 48 Cal.App.5th 588, 599; People v. Harden (2022) 81 Cal.App.5th 45, 59-60.)
Appellant's section 1172.6 petition alleged the amended information allowed the prosecution to proceed on the two attempted murder charges under the felony-murder rule, natural and probable consequences doctrine, or other theory of imputed malice, and he could not be presently convicted of attempted murder because of amendments to sections 188 and 189, effective January 1, 2019. As to both counts, however, the jury was correctly instructed that "[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Perez (2010) 50 Cal.4th 222, 230- 231.) To find the premeditation allegation true, the jury had to find appellant acted with "a clear, deliberate attempt to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation ...." (CALJIC No. 8.67.) The jury was not instructed on aiding and abetting, felony murder, natural and probable consequences, or any theories of imputed malice.
We conclude the entirety of the instructions establish appellant was charged and convicted of two counts of attempted premeditated murder based on his own express malice and intent to kill, and not any theories of imputed malice. There is nothing that appellant could have contributed to the prima facie hearing that would have changed the result based on the jury instructions and verdict, and his absence from the hearing was harmless beyond a reasonable doubt.
DISPOSITION
The trial court's order of September 20, 2022, finding appellant's petition did not state a prima facie case for resentencing, is affirmed. --------- Notes: [*] Before Pena, Acting P. J., Snauffer, J. and DeSantos, J.