People v. Ortega
| Docket Number | B326952 |
| Decision Date | 19 January 2024 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS ORTEGA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. PA055043. David W. Stuart, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung Deputy Attorneys General, for Plaintiff and Respondent.
Juan Ortega appeals the denial of his petition for resentencing under Penal Code[1] section 1172.6 (former § 1170.95).[2] The superior court determined that appellant is not entitled to section 1172.6 relief as a matter of law because the jury was not instructed on attempted murder based on the natural and probable consequences doctrine. Appellant counters that the instructions allowed the jury to convict under some other theory of imputed malice, and a literal reading of section 1172.6, subdivision (a) limiting relief only to defendants convicted of attempted murder under the natural and probable consequences doctrine leads to absurd results, contradicts legislative intent, and violates appellant's federal and state constitutional rights to equal protection. Adopting a more expansive reading of the statute as applied to attempted murder convictions, appellant contends that the record does not conclusively establish he is ineligible for resentencing as a matter of law, and he is therefore entitled to remand for issuance of an order to show cause and an evidentiary hearing in accordance with section 1172.6, subdivisions (c) and (d). We disagree and affirm the denial of appellant's resentencing petition.
FACTUAL AND PROCEDURAL BACKGROUND[3]
On the night of April 12, 2006, Antonio Maldonado, Rene Galaviz, and Samuel Morales were leaving Galaviz's house, located on a dead-end street in Pacoima. When they exited the house, a white SUV drove by, turned around at the end of the street and stopped in front of the Galaviz residence. Maldonado saw three people in the vehicle. One of them asked, "Where are you from?" Maldonado responded, "From nowhere." Either the driver or the front seat passenger then yelled a gang-related slur, and the passenger in the front seat opened fire. The three or four shots fired hit a tree behind Maldonado and the Galaviz house. The vehicle drove away. (Hurtado, supra, B200275.
Police apprehended appellant and Hurtado in the white SUV shortly after the shooting. Appellant was driving, and Hurtado was in the front passenger seat. (Hurtado, supra, B200275.)
On April 6, 2007, appellant was convicted following a jury trial on three counts of attempted murder (counts 1 through 3) among other charges. As to all three counts, the jury found true the allegation that a principal in the offense was armed with a firearm. The trial court sentenced appellant to a term of life with the possibility of parole on count 1, two concurrent life terms on counts 2 and 3, and one year for the firearm allegation.
Appellant filed his petition for resentencing under section 1172.6 on March 3, 2022. The superior court appointed counsel to represent appellant and ordered briefing. At a hearing on November 18, 2022, the superior court denied the petition on the ground that appellant's jury was not instructed on the natural and probable consequences doctrine.
A. Applicable legal principles
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg Sess.) in 2018, effectively abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder doctrine. (Stats. 2018, ch. 1015, § 1, subd. (f); People v Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) With one narrow exception (§ 189, subd. (f)), the legislation bars murder convictions premised on any theory of imputed malice-that is, any theory by which a person can be convicted of murder for a killing committed by someone else, such as felony murder or the natural and probable consequences doctrine-unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless disregard for human life. (§§ 188, subd. (a)(3) &189, subd. (e).) Specifically, the Legislature amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder "shall act with malice aforethought" and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).)
Effective January 1, 2022, Senate Bill No. 775 amended section 1172.6 to expand its coverage to individuals convicted of "attempted murder under the natural and probable consequences doctrine." (§ 1172.6, subd. (a); People v. Saibu (2022) 81 Cal.App.5th 709, 747.)
Senate Bill No. 1437 also enacted former section 1170.95 (now § 1172.6), which established a procedure for vacating the murder convictions of defendants who could no longer be convicted of murder because of the amendments to sections 188 and 189. (Stats. 2018, ch. 1015, § 4; Lewis, supra, 11 Cal.5th at pp. 957, 959, 971; Gentile, supra, 10 Cal.5th at p. 843.) After appointment of counsel (if requested) (Lewis, supra, 11 Cal.5th at pp. 963, 966), the superior court must conduct a prima facie analysis with briefing "to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c); Lewis, at p. 971; People v. Nieber (2022) 82 Cal.App.5th 458, 469-470.)
In conducting this review, our Supreme Court has held that the superior court can and should look to the record of conviction. (Lewis, supra, 11 Cal.5th at pp. 970-971 ["The record of conviction will necessarily inform the [superior] court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless"].) And "[i]f the petition and record in the case establish conclusively that the defendant is ineligible for relief, the [superior] court may dismiss the petition." (People v. Strong (2022) 13 Cal.5th 698, 708.)
We review de novo the superior court's prima facie determination that a petitioner is ineligible for section 1172.6 relief as a matter of law. (People v. Coley (2022) 77 Cal.App.5th 539, 545 (Coley); People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
B. Based on the plain language of section 1172.6, subdivision (a), appellant is ineligible for relief as a matter of law because he was not convicted of attempted murder under the natural and probable consequences doctrine
As amended by Senate Bill No. 775, section 1172.6, subdivision (a) provides: "A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts." (Italics added.)
Appellant acknowledges the plain language of the statute restricts the ameliorative benefits of section 1172.6 to individuals convicted of attempted murder only if their convictions were based on the natural and probable consequences doctrine. (Coley, supra, 77 Cal.App.5th at p. 548 ["Section [1172.6] applies by its terms only to attempted murders based on the natural and probable consequences doctrine"].) Appellant also does not dispute the superior court's determination that no instructions on the natural and probable consequences doctrine were given to the jury in this case.
Nevertheless, appellant contends that the absence of these instructions does not categorically defeat his claim for relief under section 1172.6, arguing that a literal construction of the statutory language leads to absurd results, contradicts the Legislature's intent, and violates his federal and state constitutional rights to equal protection. Appellant thus maintains he is entitled to relief because language in former CALCRIM No. 400 permitted an attempted murder conviction on a theory of imputed malice. We disagree.
When construing a statute, our fundamental task is to ascertain the Legislature's intent so as to give effect to the law's purpose. (Lewis, supra, 11 Cal.5th at p. 961; People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) We start by determining whether the language of the statute is ambiguous (People v. Dieck (2009) 46 Cal.4th 934, 940), examining its words and giving them a plain and commonsense meaning (Gonzalez, at p. 1141)."' "If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs." '" (Dieck, at p. 940.)
According to the plain language of section 1172.6, a person convicted of attempted murder is eligible for relief only if that conviction was based on the natural and probable consequences doctrine. (Coley, supra, 77 Cal.App.5th at p. 548.) Where, as in this case, the instructions did not permit the jury to convict appellant of "attempted murder under the natural and probable consequences doctrine" (§ 1172.6, subd. (a)), appellant is ineligible for relief under section 1172.6 as a matter of law. (Coley, at p. 548; see also People v Offley (2020) 48 Cal.App.5th...
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