Opinion
C098095
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. FXXI IRVIN, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 97F09876
BOULWARE EURIE, J.
In 1998, defendant Fxxi Irvin pled no contest to attempted murder and assault with a deadly weapon. (Pen. Code, §§ 664/187, subd. (a), 245, subd. (a).) He was sentenced to prison for life with the possibility of parole plus one year consecutive. In July 2022, defendant filed a petition for resentencing under former section 1170.95 (now section 1172.6), and the trial court denied it in February 2023. On appeal, defendant argues the trial court erred because the record of conviction failed to establish as a matter of law that he was not convicted under a theory of vicarious liability. We will affirm.
Undesignated statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petition under former section 1170.95, we will cite to the current section 1172.6 in the remainder of our opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant's Plea and Sentencing
Defendant was charged with attempting to murder the victim "willfully, unlawfully, deliberately, premeditatedly and with malice aforethought" (§ 664/187, subd. (a); count one), attempting to murder a second victim "willfully, unlawfully, and with malice aforethought" (§ 664/187, subd. (a); count two), and assault with a deadly weapon (§ 245, subd. (a)(1); count three). As to all counts, it was further alleged defendant personally inflicted great bodily injury upon the victims. (§§ 12022.7 [as to all counts], 1203.075 [as to counts one and three].) As to counts one and two, it was further alleged defendant personally used a deadly and dangerous weapon. (§ 12022, subd. (b).)
In 1998, defendant pled no contest to counts one and three pursuant to a negotiated disposition. Specifically with count one, defendant pled that the attempted murder was committed "willfully, unlawfully, deliberately and premeditatedly, with malice aforethought." He also admitted the dangerous weapon enhancement as to count one, and the great bodily injury enhancement as to count three. The prosecutor provided the following factual basis for the plea: "On August 22nd, 1997, [defendant] attempted to kill [his mother]. He deliberated and premeditated that act by luring her into his bedroom, whereupon he armed himself with a knife and cut her throat. [¶] She disarmed [defendant]. She ran out of the room. Her friend attempted to rescue her. [The friend] came out of another bedroom.... [¶] The defendant armed himself with a pair of scissors. He attacked [the friend]. He threw her in a chair and slashed her back, causing great bodily injury. [¶] Both women were able to exit the house safely."
B. Defendant's Section 1172.6 Petition
After defendant filed his petition for resentencing under section 1172.6, the trial court appointed defense counsel. The People filed an opposition to the petition, arguing defendant was convicted as the sole perpetrator of the attempted murder and assault, meaning he could not have been convicted of attempted murder under the natural and probable consequences theory. According to the People, the factual basis of defendant's plea unambiguously established that defendant was the sole perpetrator of the crimes, especially since no one else was charged in the crimes. In reply, defendant argued the factual basis of the plea was insufficient to establish as a matter of law that he was ineligible for relief because malice could still be imputed under the natural and probable consequences theory even if he was the actual killer.
After holding a hearing, the trial court denied defendant's petition. The trial court described the applicable jury instructions, noting that, in 1998, attempted murder required the People to prove: "1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] (2). The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." (CALJIC No. 8.66.) The court further noted that, for the attempted murder to be deemed to be willful, deliberate, and premeditated, the People were also required to prove that the attempted murder was: "[P]receded and accompanied by a clear, deliberate intent 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.... [¶] To constitute willful, deliberate, and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being." (CALJIC No. 8.67.)
The court reasoned that because defendant pled to attempting to murder his mother willfully, unlawfully, deliberately, and premeditatedly with malice aforethought, it was established as a matter of law that defendant acted with the actual malice necessary to be convicted of attempted murder under the law as amended by Senate Bill No. 1437 (Reg. Sess. 2017-2018) (Senate Bill 1437). In addition, no other individual had been charged with any crimes related to the matter. As such, defendant was ineligible for relief and the court denied his petition.
DISCUSSION
I
A. Legal Background
Senate Bill 1437, which became effective on January 1, 2019, "amend[ed] 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).)
Section 188, which defines malice, now provides in part: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) Senate Bill 1437's changes to section 189 and felony murder are not at issue here.
Senate Bill 1437 also created a mechanism for individuals convicted of qualifying offenses to petition for resentencing in what is now section 1172.6. Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) amended section 1172.6 to expand its coverage beyond those convicted of murder to include individuals convicted of "attempted murder under the natural and probable consequences doctrine, or manslaughter." (§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 2.)
Section 1172.6, subdivision (a) now provides: "A person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts 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 . . . attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of . . . attempted murder . . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of . . . attempted murder. [¶] (3) The petitioner could not presently be convicted of . . . attempted murder because of changes to Section 188 or 189 made effective January 1, 2019."
Upon submission of a section 1172.6 petition, "the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause." (§ 1172.6, subd. (c).)
The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (People v. Lewis (2021) 11 Cal.5th 952, 971.) The court"' "takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved." '" (Ibid.) The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and" 'if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Ibid.; see also People v. Harden (2022) 81 Cal.App.5th 45, 52 [it is appropriate for a court to deny a defendant's resentencing petition if the record shows the defendant is ineligible for relief as a matter of law].) Still, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Lewis, at p. 972.)
B. Analysis
Defendant contends that his no contest plea to a willful, deliberate, and premeditated attempted murder did not establish that the elements of that offense were true as a matter of law at the prima facie stage. According to defendant, the trial court erroneously drew factual inferences to make its conclusion that defendant was ineligible for relief. He further argues that the absence of a codefendant does not bar relief, and the factual basis for his plea agreement did not establish the truth of the factual basis. We find no merit in defendant's contentions.
In People v. Romero (2022) 80 Cal.App.5th 145, the defendant pled no contest to first degree murder and admitted the allegation that he" 'acted intentionally, deliberately and with premeditation' in the commission of the offense." (Id. at p. 152.) The defendant subsequently appealed from the trial court's denial of his section 1172.6 resentencing petition, arguing the admission did not establish that he acted with actual malice. (Romero, at p. 153.) The appellate court disagreed, reasoning that defendant "did not merely admit to having committed murder' "willfully, unlawfully, and with malice aforethought,'" but rather to having committed murder 'intentionally, deliberately and with premeditation.'" (Ibid.) Such an admission "establishes that he acted with actual malice sufficient to sustain the murder conviction under the law as amended by Senate Bill No. 1437." (Ibid., citing People v. Concha (2009) 47 Cal.4th 653, 662 ["when malice is express because the defendant possessed a specific intent to kill, first degree murder liability may be proper if the charged defendant personally acted willfully, deliberately, and with premeditation"]; People v. McCoy (2001) 25 Cal.4th 1111, 1123 ["Absent some circumstance negating malice one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice"]; People v. Thomas (1945) 25 Cal.2d 880, 900 [to prove a defendant premeditated and deliberated the consequences of his action, there must be "substantially more reflection than may be involved in the mere formation of a specific intent to kill"].)
Similarly, defendant here pled no contest to committing attempted murder "willfully, unlawfully, deliberately and premeditatedly, with malice aforethought." The factual basis provided for the plea included the fact that defendant "attempted to kill his mother" by using a knife to cut her throat. We agree with the Romero court that defendant's admission to the charged enhancement allegation establishes that he, as the actual perpetrator, attempted to kill with malice aforethought sufficient to sustain the attempted murder conviction as amended by Senate Bill 1437. (See People v. Romero, supra, 80 Cal.App.5th at pp. 152-153.) Given our conclusions, we need not consider defendant's contentions that the trial court engaged in improper factfinding.
DISPOSITION
The trial court's order denying the resentencing petition is affirmed.
We concur: ROBIE, Acting P. J., KRAUSE, J.