Opinion
E075624
08-09-2021
THE PEOPLE, Plaintiff and Respondent, v. CASIMIRO AMEZCUA, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Banta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB024827 Michael A. Smith, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Banta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant, Casimiro Amezcua, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the court denied. On appeal, defendant contends the court erred in denying his petition and that he was denied constitutionally effective assistance of counsel. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
By order dated February 22, 2021, we granted appellant's request that we take judicial notice of our nonpublished opinion from defendant's appeal of the judgment. (People v. Amezcua (June 20, 2008, E041865) [nonpub. opn.] (Amezcua).) On May 17, 2021, we granted the People's request that we take judicial notice of the clerk's transcript in defendant's appeal of the judgment. (Evid. Code, § 459.)
“The charges in this case stem from a gang-related shooting on Union Street that occurred on the night of November 27, 1999, in which defendant and [his codefendant Alberto] Barreto, both of whom are members of a criminal street gang called Florencia 13, were alleged to have opened fire on a group of people associated with 7th Street, a rival gang. The shooting purportedly occurred in retaliation for the shooting of a Florencia 13 member by 7th Street earlier in the day. As a result of defendant's actions, Jesse Martinez was shot and killed. His girlfriend Natalie Molina was shot in the back and remains a paraplegic as a result of the injury. Two others, Keith Caldwell and Angela Alvarado, also were shot and injured. Ms. Alvarado was pregnant at the time, and the baby died as a result of the shooting.” (Amezcua, supra, E041865.)
“On the night of November 27, 1999, Sammy Perez and several of his friends were gathered outside his house on Union Street when two men walked up and asked Perez where he was from. When Perez responded, ‘7th Street,' the name of the street gang to which Perez belonged, one or both of the men said the name of their gang, Florencia, and then one of them pulled a.22-caliber rifle out from behind his leg and started shooting. Perez ran and escaped injury.” (Amezcua, supra, E041865.)
“Alex Martinez, whose brother Jesse Martinez was killed in the shooting, testified in pertinent part that he was at the gathering on Union Street and after the man with the rifle stopped shooting, the second man started shooting a handgun. Martinez believed the second person fired two or three shots at the crowd from the handgun. The two men then ran to a nearby car and drove away. Alex Martinez could not identify Barreto but he did identify defendant from a photo lineup. Alex Martinez also remembered that at the original trial, he again identified defendant and stated defendant was the second shooter, the one with the handgun.” (Amezcua, supra, E041865, fn. omitted.)
This court reversed defendant's original conviction. (People v. Amezcua (July 15, 2003, E030954) [nonpub. opn.].) Upon retrial on remand, a jury convicted defendant again. (Amezcua, supra, E041865.)
“Barreto, whom [Ralph] Robles knew as Demon, called Robles on the telephone and later showed up at [Robles'] girlfriend's house. While at the house, Demon went into the bedroom where Robles was sleeping and put two guns under the mattress. The next morning, when he and his girlfriend were making the bed, Robles found a.22-caliber rifle and a.380-caliber handgun under the mattress. Robles got rid of the rifle by taking it to a friend of his girlfriend, but he kept the handgun which police later found in the closet of his bedroom.” (Amezcua, supra, E041865.)
Alejandro Obezo's testimony from the first trial was read into evidence. (Amezcua, supra, E041865.) Obezo testified “that he was in a car with defendant and Barreto on the night in question. Defendant and Barreto had been talking about paying someone back for a shooting earlier that day of a Florencia 13 member. When they passed a group of people in the street, defendant pulled the car over, and defendant and Barreto got out. Obezo said that defendant had a handgun and Barreto had a rifle. They walked back toward the people in the street, after which Obezo, who stayed in the car, heard gunshots. Defendant and Barreto ran back to the car. Obezo heard both men talk about how they had fired shots and heard defendant specifically say something about how he had shot someone in the head.” (Ibid.)
On September 7, 2006, “a jury... found defendant guilty as charged of one count of first degree murder (count 1) and three counts of attempted murder with premeditation and deliberation (counts 2, 3, and 4). The jury also returned true findings on gun use enhancements under Penal Code section 12022.53, subdivisions (d) and (e)(1), and criminal street gang enhancements under Penal Code section 186.22, subdivision (b)(1), alleged in connection with each count. The trial court, in turn, sentenced defendant to state prison for a total term of 180 years to life.” (Amezcua, supra, E041865.)
On May 14, 2019, defendant filed a petition for resentencing pursuant to section 1170.95, alleging he had been convicted of first degree murder pursuant to the felony-murder rule or natural and probable consequences doctrine and could not now be so convicted. The People filed a motion to strike defendant's petition based on the purported unconstitutionality of section 1170.95. A hearing on the matter was continued repeatedly.
At the hearing on the petition on August 7, 2020, defense counsel, who was also defendant's trial counsel, noted that the People's response “had to do with the constitutionality issue which has since been resolved in favor of the petitioner.”
Defense counsel then stated: “So we are left with the facts and whether they support the petition for resentencing.... So I think what counsel and I are willing to do is agree that the facts as set forth in the Court of Appeal opinion dated June 20, 200[8], may be relied on by the Court in determining the petitioner's eligibility. [¶] I might say that apparently the evidence indicated there were two shooters involved, one of wh[om] was my client.”
The court asked if the jury found true allegations that defendant had personally used a firearm. Defense counsel answered, “I believe so, yes.” The court reviewed this court's opinion and observed, “this does not appear to be a situation where the defendant's liability was based on the felony-murder rule.” “It appears that defendant and co-defendant were both shooters and use-of-a-firearm allegations were found true as to the defendant. So it appears that the defendant was one of the two actual shooters and, therefore, was either the actual killer or acting in concert and aiding and abetting the actual killer, and by his actions of firing at the victims demonstrated he was acting with intent to kill and demonstrating that he was acting in conscious disregard for human life. [¶] So based on those facts, it appears to the Court that the defendant is-even under [section] 1170.95 as amended, the defendant still qualifies for murder and therefore is not statutorily eligible for relief under [section] 1170.95.” The court denied the petition.
The jury had actually rendered a finding only that a principal had personally and intentionally discharged a firearm in the killing.
II. DISCUSSION
Defendant contends the court erred in denying his petition based on the erroneous representation that the jury had found a personal use enhancement true as to defendant; that he was deprived of effective assistance of counsel by counsel's representation to the court that the jury had found a personal use enhancement true as to defendant; and that in reviewing the court's ruling, this court should refrain from looking at the record of conviction beyond this court's opinion from defendant's appeal of the judgment. We disagree.
As noted ante, in footnote 2, we granted the People's request for judicial notice of the clerk's transcript in Amezcua, supra, E041865, from defendant's appeal of the judgment. (Evid. Code, § 459.) Prior to granting the request, we gave defendant 15 days to file opposition to the request. Defendant did not file any opposition.
“Effective January 1, 2019, the Legislature passed Senate Bill 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).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) ___ Cal.5th ___ [2021 Cal. Lexis 5258, at p. 6] (Lewis).)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' [Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment of counsel.' (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of another petition.'” (Lewis, supra, ___ Cal.5th ___ [2021 Cal. Lexis 5258, at pp. 6-7].)
“Where the petition complies with [section 1170.95, ] subdivision (b)'s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing' for relief.” (Lewis, supra, ___ Cal.5th ___ [2021 Cal. Lexis 5258, at p. 7].) “If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing ‘to determine whether to vacate the 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.] ‘The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.' [Citation.] At the hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.'” (Id. at pp. 7-8.)
In this case, the trial court dismissed defendant's petition at the prima facie stage under section 1170.95, subdivision (c). “A denial at that stage is appropriate only if the record of conviction demonstrates that ‘the petitioner is ineligible for relief as a matter of law.' [Citations.] This is a purely legal conclusion, which we review de novo.” (People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;accord, People v. Galvan (2020) 52 Cal.App.5th 1134, 1137, 1142, review granted Oct. 14, 2020, S264284.)
Here, after the court reviewed this court's opinion from defendant's appeal from the judgment, the court concluded defendant “was either the actual killer or acting in concert and aiding and abetting the actual killer, and by his actions of firing at the victims demonstrated he was acting with intent to kill and demonstrating that he was acting in conscious disregard for human life.” The court's conclusion is correct. At minimum, defendant was a direct aider and abettor of the murder acting with malice aforethought. Thus, he was ineligible for relief as a matter of law. (People v. Offley (2020) 48 Cal.App.5th 588, 595-596 [“The change” in the law “did not, however, alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily ‘know and share the murderous intent of the actual perpetrator.'”].)
Indeed, as the People note, the clerk's transcript reflects that on the murder charge, defendant was not tried under the felony-murder rule or the natural and probable consequences theory; instead, the People tried defendant as a direct perpetrator or an aider and abettor acting with malice aforethought. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020, S263939 [“The jury instructions given at a petitioner's trial may provide ‘readily ascertainable facts from the record' that refute the petitioner's showing....”]) Thus, because the jury was not instructed with the natural and probable consequences or felony-murder theories, it could not have convicted him on either theory; therefore, defendant is prima facie ineligible for relief pursuant to section 1170.95 as a matter of law. (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July 22, 2020, S262835 [“[I]f the jury was not instructed on a natural and probable consequences or felony-murder theory of liability, the petitioner could not demonstrate eligibility as a matter of law because relief is restricted to persons convicted under one of those two theories.”]; Soto, at p. 1055 [Where the jury was not instructed on felony-murder or the natural and probable consequences theories, “the jury necessarily found [the defendant] culpable for murder based on his own actions and mental state as a direct aider and abettor, ” and, therefore, the defendant was ineligible for section 1170.95 relief as a matter of law.]; People v. Palacios (2020) 58 Cal.App.5th 845, 857, review granted Feb. 24, 2021, S266701 [“[D]efendant's record of conviction shows that he directly aided and abetted in the murder, ” rendering him ineligible for relief.]; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 [The defendant “was ineligible for relief because he was not convicted of felony murder or murder as an aider or abettor under a natural consequences theory.”].)
The fact that defense counsel erroneously expressed his belief that the jury found true an allegation that defendant had personally used a firearm and that the court may have based its ruling, in part, upon reliance on defense counsel's statement, does not change the fact that the court correctly ruled that defendant was prima facie ineligible for relief as a matter of law. This is because, as stated ante, the jury found defendant guilty, at minimum, as a direct aider and abettor of the murder acting with malice aforethought. Thus, defendant fails to show any prejudice. (People v. Rices (2017) 4 Cal.5th 49, 80 [To establish ineffective assistance of counsel, a defendant must show there was a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant.]; Anderson v. Davidson (2019) 32 Cal.App.5th 136, 144 [“‘“There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.”'”].)
Defendant argues “it is questionable whether the court below could have relied on the record of conviction at the prima facie stage.” The California Supreme Court recently ruled that a court can and should rely on the record of conviction in determining whether a prima facie showing has been made. (Lewis, supra, ___ Cal.5th ___ [2021 Cal. Lexis 5258, at p. 30; see id. at pp. 29-32 [“The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.”].) Defendant additionally maintains that this court should not rely on the jury instructions because they were not considered below. We disagree.
Here, the court below could have relied on the jury instructions had they been offered by either party. (Lewis, supra, ___ Cal.5th ___ [2021 Cal. Lexis 5258, at pp. 29-32.) Moreover, the court below could have taken judicial notice of the jury instructions even on its own motion. (Evid. Code, §§ 452, subd. (d), 455, subd. (a).)
This court can similarly take judicial notice of the jury instructions, even where they were not relied upon by the court below. (Evid. Code, § 459, subd. (a).) Indeed, reviewing courts regularly take judicial notice of records in postjudgment proceedings, even where those records were not in evidence below. (People v. Perkins (2016) 244 Cal.App.4th 129, 134, fn. 2 [§ 1170.18 petition]; People v. Brimmer (2014) 230 Cal.App.4th 782, 787, fn. 2 [§ 1170.126 petition.]; People v. Nettles (2015) 240 Cal.App.4th 402, 406, fn. 2 [§ 1170.126 petition]; People v. Garner (2016) 244 Cal.App.4th 1113, 1116, fn. 2 [“We take judicial notice of the records in defendant's prior appeal, which eliminates any arguable ambiguity in the present record about what the trial court did originally.”]; People v. Sanchez (2017) 18 Cal.App.5th 727, 737, fn. 6; People v. McCarthy (2016) 244 Cal.App.4th 1096, 1100, fn. 2.)
Having established both that the court below and this court can take judicial notice of jury instructions, it would make little sense for us to ignore those records simply because the court below did not consider them. The result would be to pointlessly reverse and remand the matter where the People could attach the instructions to any subsequent filing or request the court take judicial notice of them. Thus, the result would be the same. (Anderson v. Davidson, supra, 32 Cal.App.5th at p. 144 [“‘“[W]e will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court.”'”].)
III. DISPOSITION
The order denying defendant's petition is affirmed.
We concur: RAMIREZ P. J., MILLER J.