The People v. Salazar

• Docket Number: B327454
• Decision Date: 21 December 2023
• Citation: The People v. Salazar, B327454 (Cal. App. Dec 21, 2023)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO SALAZAR et al., Defendants and Appellants
• Court: California Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO SALAZAR et al., Defendants and Appellants

B327454

California Court of Appeals, Second District, Second Division

December 21, 2023

NOT TO BE PUBLISHED

APPEAL from postjudgment orders of the Superior Court of Los Angeles County. No. GA092102 Teri Schwartz, Judge. Reversed with directions.

Richard D. Miggins, under appointment by the Court of Appeal for Defendant and Appellant Francisco Salazar.

Lori A. Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Pereida.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

LUI P. J.

Francisco Salazar and Fernando Pereida appeal the denial of their petitions for resentencing under Penal Code^[1] section 1172.6 (former § 1170.95)^[2] at the prima facie stage. Appellants contend the superior court improperly weighed evidence and made findings of fact based on erroneous conclusions about the substance of appellants' pleas and the preliminary hearing transcript to deny their petitions. We agree. The orders denying appellants' petitions under section 1172.6 are therefore reversed, and both matters are remanded to the superior court for issuance of orders to show cause and further proceedings in accordance with section 1172.6 subdivision (d).

FACTUAL^[3] AND PROCEDURAL BACKGROUND

In the early morning hours of October 27, 2013, Raul Garcia was at a house party, where someone pointed out appellants Pereida and Salazar to him by name. Garcia left the party and walked to his car parked down the street. It was very dark. After Garcia had entered his car, two men approached and stood at the driver's side window. One or both of them asked Garcia where he was from. Garcia responded "Nowhere." Garcia was then struck by two bullets in the back of his ear and his head, both of which lodged in his face. Garcia did not see a gun and did not know who shot him, but he identified Pereida and Salazar as the two men who stood at his car window and asked where he was from.

On September 9, 2014, defendants Pereida and Salazar were charged by information with one count of attempted willful, deliberate, and premeditated murder. (§§ 664/187, subd. (a).) It was further alleged that a principal personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subds. (b), (c), (d), & (e)), and that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C) &(b)(4)). Defendants pleaded not guilty and denied the allegations.

On February 11, 2016, both defendants withdrew their pleas of not guilty and pleaded no contest to count 1. Each admitted the allegation pursuant to section 12022.53, subdivisions (c) and (e)(1) that a principal personally discharged a firearm, and also admitted the gang allegation. The trial court granted the People's motion to amend the information to strike the allegation that the attempted murder was willful, deliberate, and premeditated. Counsel for both defendants stipulated to a factual basis for the plea based on the preliminary hearing transcript and arrest reports. In accordance with the plea agreement, the trial court sentenced each defendant to a term of 29 years in state prison, consisting of the upper term of nine years for attempted murder plus 20 years for the principal-armed enhancement pursuant to section 12022.53, subdivisions (c) and (e)(1). The gang enhancement under section 186.22, subdivision (b)(1)(C) was imposed and stricken pursuant to the plea agreement.

On February 14, 2022, appellant Pereida filed a petition for resentencing under section 1172.6. Appellant Salazar filed his section 1172.6 petition for resentencing on March 23, 2022. Both petitions alleged that a complaint, information, or indictment was filed which allowed the prosecution to proceed under a theory of attempted murder under the natural and probable consequences doctrine; appellants accepted plea offers in lieu of a trial at which they could have been convicted of attempted murder; and appellants could not presently be convicted of attempted murder because of changes made to sections 188 and 189, effective January 1, 2019. (§ 1172.6, subd. (a).)

Following appointment of counsel for appellants and briefing by the parties, the superior court conducted a prima facie hearing on the petitions on December 14, 2022. The superior court stated it had reviewed the preliminary hearing transcript and determined that "[t]he information in this case did not allow the prosecution to proceed under the felony murder or natural and probable consequence doctrine. This was an express malice attempted murder and both Mr. Salazar and Mr. Pereida were principals in the offense. So there's no imputation of express malice." The court further noted that appellants "pled no contest to express malice attempted murder and admitted a personal use of a firearm allegation." It then denied the petitions on the ground that appellants had failed to make the requisite prima facie showing and were ineligible for relief under section 1172.6 as a matter of law.

DISCUSSION

The Superior Court Erred in Denying Appellants' Petitions for Resentencing Without Conducting an Evidentiary Hearing in Accordance with Section 1172.6, Subdivision (d)

Appellants assert that their petitions adequately alleged the conditions for relief under section 1172.6, thereby making a prima facie showing of eligibility. Because there was nothing in the record the superior court could properly rely on at this stage to conclusively refute these allegations, appellants contend reversal is required and the matter must be remanded for issuance of orders to show cause and a hearing in accordance with section 1172.6, subdivision (d). We agree.

A. Applicable legal principles

Attempted murder requires that the defendant harbor express malice, that is, the specific intent to kill. (People v. Sanchez (2016) 63 Cal.4th 411, 457; People v. Stone (2009) 46 Cal.4th 131, 139; People v. Smith (2005) 37 Cal.4th 733, 739 ["Intent to unlawfully kill and express malice are, in essence, 'one and the same' "].) When appellants entered their pleas, however, an aider and abettor could be found guilty of attempted murder-even absent the intent to kill-under the natural and probable consequences doctrine. Under that doctrine, malice could be imputed to an aider and abettor, making that person "guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime. [Citations.] 'Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.'" (People v. Smith (2014) 60 Cal.4th 603, 611; see People v. Medina (2009) 46 Cal.4th 913, 919-928 [defendants who aided and abetted simple assault were guilty of resulting murder and attempted murder by accomplice].)

Effective January 1, 2019, "Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) eliminated natural and probable consequences liability for murder as it applies to aiding and abetting." (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Curiel (Nov. 27, 2023, S272238) __Cal.5th __ (Curiel); § 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) 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).)

Senate Bill No. 1437 also added section 1172.6 (former § 1170.95) to the Penal Code, creating "a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, supra, 11 Cal.5th at p. 957.) Senate Bill No. 775, effective January 1, 2022, 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.)

Upon the filing of a properly pleaded petition for resentencing the superior court must appoint counsel if requested, and then conduct a prima facie analysis with briefing to determine the petitioner's eligibility for relief. (§ 1172.6, subds. (b)(3) &(c); Lewis, supra, 11 Cal.5th at pp. 957, 960; People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) "[T]he prima facie inquiry . . . is limited....' "[T]he 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. If so, the court must issue an order to show cause." '" (Lewis, at p. 971; Curiel, supra,__ Cal.5th__ [2023 Cal. Lexis, p. *52].) In making its assessment, the superior court may consider the petitioner's record of conviction. (Lewis, at pp. 970-971.) And in cases where the conviction resulted from a guilty plea rather than a trial, the record of conviction may include the transcript of the petitioner's preliminary hearing. (People v. Reed (1996) 13 Cal.4th 217, 223.) As Lewis explained, "The record of conviction will necessarily inform the trial court's prima facie inquiry . . . allowing the court to distinguish petitions with potential...