People v. Iraheta, B173223 (Cal. App. 4/30/2008)

• Decision Date: 30 April 2008
• Docket Number: B173223
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CARLOS MIGUEL IRAHETA, Defendant and Appellant
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. CARLOS MIGUEL IRAHETA, Defendant and Appellant

B173223

Court of Appeals of California, First Appellate District, Division Three

April 30, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. YA053907, John V. Meigs, Judge. Affirmed.

Larry Pizarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

KLEIN, P.J.

Defendant and appellant, Carlos Miguel Iraheta, appeals the judgment entered following his conviction, by jury trial, for second degree murder with firearm use findings (Pen. Code, §§ 187, subd. (a), 12022.53).¹ Sentenced to state prison for 40 years to life, Iraheta claims there was trial error.

The judgment is affirmed.

FACTUAL BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.

1. Prosecution evidence.

On December 20, 2002, a man stared hard at Noe Martinez as they stood in line at an Inglewood liquor store. Two hours later, Martinez passed the liquor store while riding in his car and saw the same man standing outside. The man was talking to some people in a car being driven by defendant Iraheta. After the man pointed at Martinez, Iraheta began following Martinez's car. Martinez became concerned and asked his friend Michael Orozco, who was driving, to stop at the side of the road. Orozco did and Martinez got out of the car. Iraheta pulled up next to Martinez's car, produced a revolver, reached across the front passenger seat and fired one shot out the window. The shot hit Orozco in the neck, killing him.

The police apprehended Iraheta shortly thereafter. A firearms expert determined that a revolver found in Iraheta's car had fired the fatal bullet.

2. Defense evidence.

Iraheta testified he was not a gang member, but that he carried a handgun for protection because he had been beaten up earlier that year. On the day of the incident, Iraheta was out driving with his girlfriend and his brothers when he stopped at the liquor store to see his friend, Herman. Herman said the occupants of a passing white car had given him problems. Herman did not, however, direct Iraheta to shoot the people in the white car. After Iraheta left the liquor store, he found the white car stopped in the middle of the street in front of him. Martinez was standing next to the car. As Iraheta slowly maneuvered around the white car, one of his brothers said, "[K]eep moving; he's got a gun." Orozco was sitting in the driver's seat with something in his hand, which Iraheta thought was a small handgun. Iraheta reached for his own gun, fired one shot out the passenger-side front window of his car, and sped away.

Although there was testimony from a number of other defense witnesses, including Iraheta's girlfriend and his brothers, none of it shed any further light on what occurred at the exact moment of the shooting. However, the general tenor of this other defense evidence contradicted the prosecution theory that Iraheta had aggressively gone after the white car in order to assault its occupants.

PROCEDURAL BACKGROUND

On December 12, 2004, Iraheta's appellate counsel filed an opening brief contending the trial court had erred by giving inadequate jury instructions on imperfect self-defense and by coercing a verdict from the jury. The Attorney General filed a responsive brief, but Iraheta's attorney did not file a reply brief or ask for oral argument. On January 26, 2006, this court issued an unpublished opinion rejecting Iraheta's contentions and affirming his conviction. There was no petition for rehearing or petition seeking review by the California Supreme Court. We issued the remittitur on March 30, 2006.

On February 6, 2007, this court received a letter from Iraheta. He inquired about the status of his case, indicating that his retained appellate attorney, who had agreed to file a reply brief and present oral argument, had not been in touch with him. On April 16, this court, acting sua sponte, issued an order recalling the remittitur, vacating the opinion, reinstating the appeal and directing the appointment of new counsel on appeal. This order stated: "[I]t appears that appellant's retained counsel on appeal . . . abandoned the representation of [appellant] prior to the conclusion of the appeal by failing to communicate with [appellant] or participate in the litigation of the appeal after the filing of the appellant's opening brief."

Newly appointed appellate counsel filed a new opening brief raising different issues than the ones briefed by Iraheta's previous attorney.

CONTENTIONS

1. The Attorney General contends the remittitur should not have been recalled.

2. Iraheta contends he was improperly convicted of second-degree felony murder.

DISCUSSION

1. Recall of the remittitur was not improvidently granted.

The Attorney General contends the appeal should be dismissed because recall of the remittitur was improvidently granted. He argues that, by recalling the remittitur, this court has improperly granted Iraheta a second appeal, thereby allowing him "to take advantage of this Court's opinion in People v. Bejarano (2007) 149 Cal.App.4th 975, without having to establish that it retroactively applies to him." We disagree.

"The legal principles applicable to the recall of remittiturs are fairly well settled. `Other than for the correction of clerical errors, the recall may be ordered on the ground of fraud, mistake or inadvertence. The recall may not be granted to correct judicial error. . . . [A] decision is inadvertent if it is the result of oversight, neglect or accident, as distinguished from judicial error.' [Citation.] `[W]hile the general rule is that an appellate court loses all control and jurisdiction over a cause after remittitur has been issued, a mistake or an improvident act which results in prejudicial error or miscarriage of justice may nevertheless be corrected upon a recall of remittitur.' " (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 165-166; see Rowland v. Kreyenhagen (1864) 24 Cal. 52, 60 [remittitur properly recalled if "the order or judgment had been irregularly made; that is, made upon a false suggestion, or under a mistake as to the facts of the case"];

Thus, in People v. Hickok (1949) 92 Cal.App.2d 539, the remittitur was recalled to save a criminal appeal that had been dismissed when confusion between newly retained and former counsel led to a failure to file the opening brief: "[T]he appellant, the real party in interest, was not at fault. He was incarcerated and was doing all that he could to protect his rights, and thought that he had done so. . . . In a proper case the court . . . has power to recall a remittitur inadvertently or improperly issued. [Former California Rules of Court, r]ule 25(d) provides that `A remittitur may be recalled by order of the reviewing court on its own motion, on motion after notice supported by affidavits, or on stipulation setting forth facts which would justify the granting of a motion.' This is an inherent power of the court and was recognized long before the above rule was adopted. [Citations.] Under these cases, and others that could be cited, and under the rule, one of the grounds for exercising the power is that the court has been induced to decide the case under a misapprehension of the true facts. That rule is applicable here." (Id. at pp. 540-541.) The current version of rule 25(d) is California Rules of Court, rule 8.272(c)(2), which provides: "On a party's or its own motion or on stipulation, andfor good cause, the court may stay a remittitur's issuance for a reasonable period or order its recall." (Italics added.)

In the case at bar, this court was operating under the mistaken belief Iraheta was being actively represented by counsel when, in fact, he was not. Iraheta's attorney filed an opening brief, but then failed to carry out promises to file a reply brief and appear for oral argument. Subsequently, the attorney failed to inform Iraheta that his appeal had been denied. Our docket indicates the clerk of court twice sent Iraheta's attorney a copy of our former opinion in this matter, and that twice the opinion was returned to the clerk as undeliverable. These facts established good cause for recalling the remittitur.

The Attorney General complains that recalling the remittitur has improperly allowed Iraheta to take retroactive advantage of our decision in People v. Bejarano (2007) 149 Cal.App.4th 975. Not so. As will be explained below, Bejarano did not purport to establish any new law; it merely applied a line of California Supreme Court cases holding the prosecution cannot pursue a felony murder theory if the predicate crime was an intentional assault. Even if Bejarano had never been decided, our analysis in this case would have been exactly the same as set forth below.

Hence, we reject the Attorney General's contention that recall of the remittitur was improvidently granted.

2. Iraheta was properly convicted of second degree felony murder.

The jury in this case was instructed on three possible second degree murder theories: (1) an intentional killing where the evidence was insufficient to prove premeditation and deliberation; (2) an unintentional killing resulting from a dangerous act performed with conscious disregard for human life; and, (3) second degree felony murder based on a killing committed while violating section 246 (shooting at an occupied motor vehicle). Iraheta contends his second degree murder conviction must be reversed because the felony-murder instruction should have been excluded by the merger doctrine set forth in People v....