Opinion
B301477
10-02-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RUIZ, Defendant and Appellant.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA232116, Robert J. Perry, Judge. Affirmed.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CURREY, P. J.
This case, which comes to us on remand from the California Supreme Court, resolves Anthony Ruiz's appeal from the trial court's denial of his petition for resentencing under former section 1170.95. For the reasons discussed below, we affirm the trial court's order denying Ruiz relief.
I. Procedural History
"A jury convicted defendant and appellant Anthony Ruiz of first degree murder. (Pen. Code, § 187, subd. (a).) The jury also found true the special circumstance allegation that the murder was committed by discharging a firearm at another person from a motor vehicle with the intent to kill. (§ 190.2, subd. (a)(21).) The jury found Ruiz guilty of three counts of first degree attempted murder (§§ 664, 187, subd. (a)) and found various gang [ ] allegations not true. The trial court sentenced him to life without the possibility of parole for the murder and three consecutive life terms for the attempted murders." (People v. Ruiz (Oct. 19, 2020, B301477) [nonpub. opn.] (Ruiz II).)
All undesignated statutory references are to the Penal Code.
We take judicial notice of Ruiz II. That opinion was issued by a different panel of this court after Ruiz appealed the trial court's order denying him section 1170.95 relief. We also take judicial notice of the opinion, drafted by yet another panel of this court, resolving Ruiz's direct appeal from his convictions: People v. Ruiz et al. (Apr. 21, 2005, B173153) [nonpub. opn.] (Ruiz I). (Evid. Code, § 452, subd. (a).)
"On direct appeal from that judgment, Ruiz argued substantial evidence did not support the murder conviction, the special circumstance allegation, and the attempted murder convictions because there was insufficient proof Ruiz harbored the intent to kill. [A different panel of t]his court rejected Ruiz's arguments and affirmed the judgment, concluding '[t]he evidence clearly showed a deliberate, planned attack on the victims.'" (Ruiz II, supra, B301477.)
"In 2019, Ruiz filed a petition for resentencing under [former] section 1170.95. The trial court summarily denied the petition, explaining '[t]he facts of the case clearly showed [Ruiz] acted with an intent to kill and as a major participant[,]' and noting this court 'specifically rejected Ruiz'[s] argument that he did not act with an intent to kill." (Ruiz II, supra, B301477.)
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. For the sake of simplicity, we will hereafter refer to the statute by its new code section. That section provides relief for certain individuals convicted of murder under the felony murder rule, natural and probable consequences doctrine, or any other theory of imputed-malice liability. (§ 1172.6, subd. (a).) It also provides relief for certain individuals convicted of attempted murder under the natural and probable consequences doctrine. (Ibid.)
"Ruiz filed a timely notice of appeal, and we appointed counsel to represent him. We granted Ruiz's motion that we take judicial notice of the record from his direct appeal. On April 1, 2020, appellate counsel filed a brief raising no issues and asking us to review the record independently for arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)" Ruiz did not respond to our letter advising him of his right to file supplemental briefing, and we dismissed his appeal as abandoned. (Ruiz II, supra, B301477.)
On June 21, 2023, the Supreme Court transferred the matter back to this court with directions to vacate Ruiz II and "reconsider whether to exercise [our] discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 &fn. 6 and People v. Lewis (2021) 11 Cal.5th 952."
II. Discussion of Issues Presented
On June 29, 2023, Ruiz's appellate counsel filed a supplemental brief in this court. Counsel argues the trial court prejudicially erred by summarily denying Ruiz's petition without appointing counsel. Counsel also argues the trial court prejudicially erred by relying on the facts from this court's opinion in Ruiz's direct appeal when denying relief. On August 17, 2023, we granted the Attorney General's request for leave to file a late supplemental brief. (See Cal. Rules of Court, rule 8.200(b).)
Although it is true the trial court erred by denying relief without appointing counsel (see § 1172.6, subd. (b)(3); People v. Lewis, supra, 11 Cal.5th at p. 957), the error was harmless because the record demonstrates as a matter of law that Ruiz is ineligible for section 1172.6 relief. (People v. Mancilla (2021) 67 Cal.App.5th 854, 864.) As noted above, we previously granted Ruiz's attorney's request to take judicial notice of the record in Ruiz's direct appeal. A review of that record reveals the jury was never instructed on the felony murder rule, natural and probable consequences doctrine, or any other theory of imputed-malice liability. It is thus clear that Ruiz's convictions for murder and attempted murder remain valid under current law. For this same reason, any error by the trial court in relying on the facts from this court's direct appeal opinion when denying relief was likewise harmless. Lastly, we reject the contention that the denial of relief without appointing counsel violated Ruiz's federal constitutional rights. As Ruiz's counsel indeed notes, the Supreme Court has held the failure to appoint counsel in section 1172.6 proceedings is error under state law only. (People v. Lewis, supra, 11 Cal.5th at p. 973.)
The trial court issued its ruling on August 23, 2019, before the Legislature, effective January 1, 2022, amended the statute to prohibit courts from relying on the factual recitations of prior Court of Appeal opinions to deny relief. (See People v. Clements (2022) 75 Cal.App.5th 276, 292.)
Because appellate counsel has filed a supplemental brief raising substantive arguments that the trial court committed prejudicial error, the framework articulated in People v. Delgadillo, supra, 14 Cal.5th 216, for how to proceed when counsel finds no arguable issues is inapplicable. (See id. at pp. 231-233.)
DISPOSITION
The order denying relief is affirmed.
We concur: COLLINS, J., ZUKIN, J.