People v. Olivares

• Docket Number: B324827
• Decision Date: 01 November 2023
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO OLIVARES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO OLIVARES, Defendant and Appellant.

B324827

California Court of Appeals, Second District, Third Division

November 1, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. BA205131 Curtis Rappe, Judge. Affirmed.

Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance Winters, Chief Assistant Attorney General, Susan Pithey, Senior Assistant Attorney General, Steven Matthews and Gary Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

ADAMS J.

In 2002, a jury convicted defendant and appellant Francisco Olivares of attempted willful, premeditated, and deliberate murder. Olivares now appeals from an order denying his petition for resentencing under Penal Code section 1170.95.^[1]The trial court concluded Olivares did not make a prima facie showing of eligibility for resentencing. We agree and affirm the trial court order denying Olivares's petition.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying offense The following facts are taken from Olivares's petition for resentencing.^[2]

"On July 5, 2000, Ricardo Aguilar was at the home of his friends Michael and Carlos Moreno, on McBride Street in Los Angeles. Ricardo was helping his friend put a new battery in his friend's mother's car. Michael came inside with a panicked look and stated [']the guys from Ford are outside.['] Ford Maravilla and Marianna Maravilla, which is the gang Michael is associated with, are rival gangs.

"At around 3:00 p.m., Ricardo went outside to move the car out of the driveway, but the keys were stuck in the ignition. Ricardo went inside to ask his friend for help with the keys. As they were walking back to the car, a black truck drove up to Ricardo and his friend. The person in the passenger's seat asked 'where are you from?' Ricardo said 'nowhere' and started running toward the house. Shots were fired from the truck and everyone ducked for cover.

"After the shooting, Ricardo laid face down with blood coming from his head. He was shot and hit by the bullets. They called 911 and Ricardo was transported to the hospital. He spent 15 days in the hospital recovering."

The Underlying Proceedings

In March 2001, the People filed a two-count information charging Rafael Madrigal, Jr., and Olivares with attempted murder. The information alleged the attempted murder was committed willfully, deliberately, and with premeditation, and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang. As to Olivares, the information alleged a principal personally used and intentionally discharged a firearm, which proximately caused great bodily injury to Aguilar, within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1), and section 12022.5, former subdivision (a)(1).^[3] The People proceeded on the theory that Madrigal was the shooter and Olivares was the driver.

The jury found Olivares guilty of attempted murder (§§ 664; 187, subd. (a)) and found true each allegation charged.

The trial court sentenced Olivares to a state prison term of life for attempted murder, plus 25 years to life for the firearm enhancement.

Olivares's petition for resentencing

In February 2022, Olivares filed a petition for resentencing. He contended the jury was instructed on the natural and probable consequences doctrine and that it subsequently convicted him under that theory.

At Olivares's request, the court appointed counsel. Olivares then filed a second petition, arguing that he was eligible for resentencing because "he was not the actual shooter he did not have the specific mental state to kill, was not a major participant and did not act with reckless indifference to human life." Olivares asserted the prosecutors argued a theory of imputed malice to the jury and "there was no evidence . . . that [Olivares] knew or should have known," as the driver, that Madrigal "was armed or was going to use a firearm."

In its response, the People argued Olivares failed to make a prima facie showing of eligibility because the jury was not instructed on the natural and probable consequences doctrine. Olivares's reply brief asserted the jury was indirectly instructed on imputed malice because the court told jurors they could draw reasonable and logical inferences; Olivares was not a principal because he was not the shooter; the natural and probable consequences doctrine was argued by the prosecutor in her closing argument; the jury may have imputed malice to Olivares because he and Madrigal were both gang members and Madrigal had the requisite specific intent; and the evidence against Olivares regarding his intent was circumstantial.

The trial court held a hearing in September 2022. After considering the parties' briefing, portions of the reporter's transcript, and argument, the court found Olivares was ineligible for relief as a matter of law because he was charged and convicted "as a direct aider and abettor with specific intent" and not under the natural and probable consequences doctrine.

DISCUSSION

I. Senate Bill Nos. 1437 and 775 and Section 1172.6

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and limited the scope of the felony murder rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) The bill amended section 188 by adding the requirement that, except as stated in section 189, subdivision (e), "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).) Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) expanded Senate Bill 1437's mandate, in part, by eliminating the natural and probable consequences doctrine as a means of finding a defendant guilty of attempted murder. However, a principal in a murder or attempted murder, including an aider or abettor, can still be criminally liable if found to personally possess malice aforethought, whether express or implied. (People v. Silva (2023) 87 Cal.App.5th 632, 639-640.)

Senate Bills 1437 and 775 created a procedure, now codified at section 1172.6, to allow a person convicted of murder, attempted murder, or manslaughter under the former law to seek resentencing if the person could no longer be convicted under amended section 188. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant starts the procedure by filing a petition containing a declaration that, among other things, he or she could not presently be convicted of murder under the current law. (Strong, supra, 13 Cal.5th at p. 708.) In relevant part, the statute requires the court, "[a]fter the parties have had an opportunity to submit briefings," to "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. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c).)

II. Prima Facie Stage and Standard of Review

At the prima facie stage,"' "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." '" (Lewis, supra, 11 Cal.5th at p. 971.) "While the trial court may look at the record of conviction . . . to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) is limited." (Ibid.) Courts may not reject the petitioner's allegations" 'on credibility grounds'" or engage in" 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at pp. 971-972.) Rather, "[t]he record should be consulted at the prima facie stage only to determine 'readily ascertainable facts,' such as the crime of conviction and findings on enhancements." (People v. Duchine (2021) 60 Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 54-56 [considering jury instructions and verdicts to determine whether defendant made prima facie showing of eligibility]; People v. Ervin (2021) 72 Cal.App.5th 90, 106 (Ervin) [considering sentencing enhancements, jury instructions, closing arguments, and verdicts at prima facie stage].) The trial court's denial of a resentencing petition at the prima facie stage" 'is a purely legal conclusion,'" which we review de novo. (Ervin, at p. 101.)

III. Olivares is Ineligible for Relief Under Section 1172.6 Because He Was Not Convicted of Attempted Murder Under the Natural and Probable Consequences Doctrine

Senate Bill 775 eliminated the natural and probable consequences doctrine as a basis for attempted murder liability. However, "[d]irect aiding and abetting remains a valid theory of attempted murder after the enactment of Senate Bill No. 775." (People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).)

"Attempted 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 (Lee).) Specific intent crimes, including attempted murder, require an accomplice to"' "share the specific intent of the perpetrator ...." '" (People v. McCoy (2001) 25 Cal.4th 1111,...