People v. Valenzuela
| Decision Date | 03 December 1985 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jesus Alfonso VALENZUELA, Defendant and Appellant. Crim. 38520. |
John K. Van de Kamp, Atty. Gen. and Edward T. Fogel, Jr., Asst. Atty. Gen., for plaintiff and respondent.
Jeffrey J. Stuetz, San Diego, for defendant and appellant.
On July 15, 1985, defendant Jesus Alfonso Valenzuela filed with this court a motion to recall the remittitur of our decision filed July 8, 1981, affirming a judgment of conviction entered after a jury found defendant Jesus Valenzuela guilty of first degree murder and assault with a deadly weapon and found that he personally used a firearm during the commission of both offenses after the trial court struck the use allegation as to the murder count.
This motion, however, was neither supported by any affidavits, or declarations nor based "on stipulation setting forth facts which would justify the granting of [the] motion." (See Cal. Rules of Court, rule 25(d).) Accordingly, on September 20, 1985, this court issued its order which read in part as follows:
"Defendant having failed to comply with California Rules of Court, rule 25(d), his motion to recall the remittitur filed on July 15, 1985, is denied without prejudice to his filing, within 30 days from the date of this order, a motion to recall the remittitur which complies with California Rules of Court, rule 25(d)."
On October 18, 1985, defendant filed with this court a new notice of motion and motion to recall the remittitur now supported by the declaration of Jeffrey J. Stuetz dated October 17, 1985, which sufficiently complied with California Rules of Court, rule 25(d). We accordingly consider the motion filed October 18, 1985, to recall the remittitur.
On appeal, defendant Valenzuela was represented by different appointed counsel. No petition for hearing was filed in the California Supreme Court.
The only contentions raised in defendant Valenzuela's appeal were that the trial court erred in denying Valenzuela's motions for mistrial and in refusing his proffered jury instructions. The sufficiency of the evidence supporting defendant's conviction was not challenged.
The grounds alleged for the recall of the remittitur are the following:
(1) Beeman error was committed;
(2) The evidence adduced at trial was insufficient to support his conviction for murder;
(3) The jury was inadequately instructed on the essential elements of assault with a deadly weapon in that they were not instructed on the definition of assault; and
(4) He was denied the effective assistance of appellate counsel because that counsel (a) filed an inadequate opening brief, (b) failed to augment the record on appeal to include a transcript of jury voir dire and the opening statements and closing arguments of counsel, (c) failed to attack the aiding and abetting instruction given to the jury, (d) failed to challenge the sufficiency of the evidence to support his murder conviction and (e) failed to seek reversal of his assault with a deadly weapon conviction on the ground that the jury was not fully instructed on all the essential elements of the crime.
In a letter dated July 30, 1985, the Attorney General's office advised this court that it would not file any opposition to defendant's motion to recall the remittitur. It did, however, request the opportunity to respond to any issues that are raised if and when defendant's motion to recall the remittitur is granted.
Defendant contends that because the jury could have convicted him under an aiding and abetting theory, Beeman error (People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318) was committed which requires the recall of the remittitur.
At defendant's trial, the trial court instructed the jury in accordance with the then extant 1979 revisions of CALJIC Nos 3.00 and 3.01 (1979 rev.) 1 which respectively defined principals and aiding and abetting.
In Beeman, our state's high court later concluded (People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318, emphasis in original.)
Having so concluded, the Beeman court held the 1979 revision of CALJIC No. 3.01 to be erroneous, noting that it "inadequately defines aiding and abetting because it fails to insure that an aider and abettor will be found to have the required mental state with regard to his or her own act." (People v. Beeman, supra, 35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)
The 1979 revision of CALJIC No. 3.00 which defines principals, too, is deficient under Beeman because it effectively removes the issue of criminal intent from the jury's consideration. (People v. Caldwell (1984) 36 Cal.3d 210, 224, 203 Cal.Rptr. 433, 681 P.2d 274.)
These erroneous instructions abridge constitutional notions of due process by permitting a jury to convict a criminal defendant of an offense under an aiding and abetting theory without finding the element of intent which is essential to a conviction.
Because the Beeman decision resolved a conflict among lower court decisions (35 Cal.3d at pp. 556-561, 199 Cal.Rptr. 60, 674 P.2d 1318) People v. Guerra (1984) 37 Cal.3d 385, 401, fn. 14, 208 Cal.Rptr. 162, 690 P.2d 635), the ordinary assumption of retrospective operation takes full effect. (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 37, 196 Cal.Rptr. 704, 672 P.2d 110.) Hence, the Beeman decision should be retroactively applied to those cases which were not yet final at the time that decision was handed down.
Beeman was decided on February 6, 1984. Defendant's judgment of conviction became final in 1981, and therefore could not be the basis of a successful motion to recall the remittitur. To the extent the motion is based on claimed Beeman error, it is denied.
In light of the conclusion we shall reach, we need not, and do not at this juncture, decide whether defendant was prosecuted upon the premises that he was the actual perpetrator of the murder or under an aiding and abetting theory or if, as a matter of law, the jury found defendant guilty as the direct perpetrator of the offense. We note that while the jury found that the defendant personally used a firearm in the commission of the murder, the trial judge struck that use allegation.
Defendant next contends that we should recall the remittitur because (1) the identification evidence is insufficient to support his murder conviction and because (2) the jury was not adequately instructed on the essential elements of assault with a deadly weapon. Neither of these is an independent ground for recall of the remittitur. The remedy of recall of the remittitur is, however, properly granted if the failure to challenge the sufficiency of the evidence and the adequacy of jury instructions results in the denial of effective assistance of counsel on appeal.
Since a claim of incompetency of appellate counsel is cognizable in a habeas corpus proceeding (In re Banks (1971) 4 Cal.3d 337, 343, 93 Cal.Rptr. 591, 482 P.2d 215; In re Spears (1984) 157 Cal.App.3d 1203, 1209-1210, 204 Cal.Rptr. 333) and when an error is of such dimension as to entitle a criminal defendant to habeas relief, "[t]he remedy of recall of the remittitur may then be deemed an adjunct to the writ, and will be granted when appropriate to implement the defendant's right to habeas corpus." 2 (People v. Mutch (1971) 4 Cal.3d 389, 396-397, 93 Cal.Rptr. 721, 482 P.2d 633.)
We, therefore, address defendant's contention that the remittitur should be recalled and his appeal reinstated because he was denied the effective assistance of counsel on appeal.
The specific duties of appointed appellate counsel were set forth by the Supreme Court in People v. Feggans (1967) 67 Cal.2d 444, 447-448, 62 Cal.Rptr. 419, 432 P.2d 21 as follows:
In In re Smith, supra, 3 Cal.3d 192, 195, 90 Cal.Rptr. 1, 474 P.2d 969, the Supreme Court declared that Anders and Feggans do not require appellate counsel "to contrive arguable issues," but held in that case that "each of the counts on which petitioner was convicted was potentially vulnerable to legitimate and provocative appellate contentions that should have been manifest to an alert and responsive attorney." (In re Smith, supra, 3 Cal.3d at p. 198, 90 Cal.Rptr. 1, 474 P.2d 969.) After delineating the arguable...
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