Opinion
B329230
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. LISINIO ALFREDO CASTELLANOS, Defendant and Appellant.
Theresa Osterman Stevenson, under the 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, Steven D. Matthews and Gary L. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA183701 H. Clay Jacke II, Judge. Affirmed.
Theresa Osterman Stevenson, under the 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, Steven D. Matthews and Gary L. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
MOOR, Acting, P. J.
Lisinio Alfredo Castellanos appeals the trial court's order denying his petition for vacatur of his attempted murder conviction and resentencing under Penal Code section 1172.6.The trial court found Castellanos ineligible for relief as a matter of law and declined to issue an order to show cause or hold an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3).
All further statutory references are to the Penal Code.
On appeal, Castellanos argues that the record of conviction did not conclusively establish that he was ineligible for relief as a matter of law because the jury instructions as given, and as argued by the prosecutor, permitted the jury to convict him of attempted murder based on a theory of imputed malice. We affirm the trial court's order.
PROCEDURAL HISTORY
In 1999, the jury found Castellanos and codefendant Carmelo Martinez Lopez guilty of the willful, deliberate, and premeditated attempted murder of Gaspar Pacheco (§§ 187 &664; count 1), and assault with a firearm of Melvin Fernandez (§ 245, subd. (a)(2); count 3). As to both counts, the jury found true the allegation that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). The jury further found the allegations that Castellanos personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), and personally used a firearm in the commission of the offenses (§ 12022.5, subd. (a)(1)) to be not true on both counts.
Count 2, willful, deliberate, and premeditated attempted murder of Melvin Fernandez (§§ 187 & 664), was dismissed pursuant to a negotiated plea.
As to count 1, the trial court sentenced Castellanos to life in prison, plus a term of one year for the firearm enhancement. In count 3, the trial court imposed the upper term of four years, plus one year for the firearm enhancement.
On appeal, a different panel of this Division struck the firearm enhancement with respect to count 3, but otherwise affirmed the judgment. (People v. Castellanos, Jul. 19, 2000, B134073 [nonpub. opn.].)
On August 3, 2022, Castellanos filed a petition for resentencing. The trial court appointed counsel.
The People opposed the petition, arguing that the jury had not been instructed on the natural and probable consequences doctrine. The People asserted that Castellanos was convicted as a principal who acted with malice, which precluded him from relief. The People attached to the response the prior appellate opinion and the jury instructions given at trial.
Castellanos replied through counsel. Castellanos contended that the jury's findings of not true on the allegations that he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), and personally used a firearm in the commission of the offenses (§ 12022.5, subd. (a)(1)), demonstrated that he was convicted as an aider and abettor and not as the actual shooter. Citing to People v. Langi (2022) 73 Cal.App.5th 972 (Langi), Castellanos argued that the record of conviction, and specifically the instructions given, did not conclusively eliminate the possibility that he was found guilty on a theory of liability that allowed the jury to impute malice to him based solely in his participation in a crime. Castellanos asserted that the prosecutor's arguments were also ambiguous as to whether the jury had to find that Castellanos acted with malice. Castellanos attached to the reply excerpts from the reporter's transcript of his trial.
Castellanos later filed a supplemental reply based on new precedent in People v. Maldonado (2022) 86 Cal.App.5th 43, which held that the record of conviction does not preclude relief as a matter of law if the jury could have reasonably construed the instructions in a manner that permitted the defendant to be convicted under a theory of imputed malice.
At a hearing on March 7, 2023, counsel reiterated Castellanos' position in the reply. The prosecutor responded that Langi, supra, 73 Cal.App.5th 972, did not apply in Castellanos' case. In Langi the defendant was convicted of second degree implied malice murder, whereas Castellanos was convicted of willful, premeditated, and deliberate attempted murder, which required the jury to find that Castellanos acted with the intent to kill. The trial court found that the attempted murder and aider and abettor instructions required the jury to find Castellanos acted with malice and denied the petition.
Castellanos timely appealed.
DISCUSSION
Legal Principles
In 2019, the Legislature, through Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437), amended section 188 to eliminate the natural and probable consequences doctrine as it applies to murder and to require, with certain exceptions under the felony-murder rule, that a defendant act with malice to be convicted of murder. (§ 188, subd. (a)(3).) In 2021, through Senate Bill No. 775 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 551) (Senate Bill 775), the Legislature clarified that the amendments made by Senate Bill 1437 were also intended to apply to attempted murder. Specifically, section 1172.6, subdivision (a) provides that, "[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 ...."
Under section 1172.6, a defendant convicted of attempted murder under the natural and probable consequences doctrine must attest to the following: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of . . . attempted murder under the natural and probable consequences doctrine.... [¶] (2) The petitioner was convicted of . . . attempted murder . . . following a trial .... [¶] (3) The petitioner could not presently be convicted of . . . attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subds. (a)(1)-(a)(3).)
"After a petition for resentencing is filed, the trial court must then determine whether the defendant has made a prima facie showing of entitlement to relief." (People v. Davenport (2021) 71 Cal.App.5th 476, 480.) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless.... [¶] While the trial court may look at the record of conviction after the appointment of counsel 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.... '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (People v. Lewis (2021) 11 Cal.5th 952, 971.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.' [Citation.] . . . [T]he 'prima facie bar was intentionally and correctly set very low.'" (Id. at p. 972.) "At the prima facie stage, a court must accept as true a petitioner's allegation that he or she could not currently be convicted of a homicide offense because of changes to [s]ection 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. [Citation.] And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense." (People v. Curiel (2023) 15 Cal.5th 433, 463.) If the petitioner makes a prima facie showing of eligibility, the trial court must issue an order to show cause and hold an evidentiary hearing. (Id. at p. 450.)
We independently review a trial court's determination of whether a petitioner has made a prima facie showing. (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
Analysis
Although Castellanos concedes that the jury was not instructed on the natural and probable consequences doctrine, he contends it may have convicted him under some other theory that imputed malice to him based solely on his participation in a crime because of ambiguities in the jury instructions that were exacerbated by the prosecutor's closing argument. The contention lacks merit.
Castellanos asserts, and the People agree, that the jury's not true findings on the personal firearm use and infliction of great bodily injury allegations demonstrate that he was convicted as an aider and abettor. Prior to the passage of Senate Bill No. 1437, California recognized two forms of aiding and abetting liability-direct aiding and abetting and aiding and abetting under the natural and probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 843-844, superseded by statute as stated in People v. Glukhoy (2022) 77 Cal.App.5th 576, 584.) When the Legislature promulgated Senate Bills No. 1437 and No. 775, it intended that, to convict a person of murder, attempted murder, or manslaughter, the jury must be required to find that the person acted with malice, with certain exceptions pertaining to felony murder not at issue here. (Senate Bill No. 1437, ch. 1015, § 1(g) and Senate Bill No. 775, ch. 551, § 1(a).) Prior to this legislation, the natural and probable consequences doctrine permitted defendants to be convicted without a finding of malice; with the passage of Senate Bills No. 1437 and No. 775, the doctrine is now invalid. Direct aiding and abetting, however, requires the jury to find that the defendant acted with express malice-intent to kill-and is therefore still a valid theory of liability of aiding and abetting attempted murder. (Gentile, at p. 848; accord People v. Coley (2022) 77 Cal.App.5th 539, 548.) Accordingly, an accomplice to attempted murder may make a showing of prima facie eligibility for relief under section 1172.6 only if there was a possibility that the jury convicted the defendant based on the natural and probable consequences doctrine. Here, it is undisputed that Castellanos' jury was not instructed on the natural and probable consequences doctrine. Rather, the jury was instructed on direct aiding and abetting under CALJIC No. 3.01. Castellanos was necessarily convicted under the valid direct aiding and abetting theory under the instructions given.
Nevertheless, Castellanos argues that other instructions created ambiguity regarding whether the jury had to find that he acted with express malice and "commingled the concepts of imputed malice and aider and abettor culpability." We disagree. The jury was instructed under CALJIC No. 3.01, that to aid and abet the commission of attempted murder, Castellanos had to know "the unlawful purpose of the perpetrator," and act with "the intent or purpose of committing or encouraging or facilitating the commission of the crime." The jury was instructed under CALJIC No. 8.66 that the perpetrator of an attempted murder must have "harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." Thus, to find Castellanos guilty of attempted murder, the jury had to find that the perpetrator intended to kill, that Castellanos knew the perpetrator intended to kill, and that Castellanos himself intended to commit, encourage, or facilitate the killing. These combined findings are equivalent to a finding that Castellanos shared the perpetrator's express malice. (See People v. Beeman (1984) 35 Cal.3d 547, 560 ["an aider and abettor will 'share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime"].) Accordingly, he is ineligible for relief as a matter of law. (People v. Coley, supra, 77 Cal.App.5th at pp. 547-548 [absent justification or excuse jury finding of intent to kill conclusively precludes eligibility for resentencing under section 1172.6].)
Castellanos complains that although he was charged with three crimes, CALJIC No. 3.01 (the aiding and abetting instruction) did not specify a target crime. Here, it was not necessary to specify target and non-target crimes, as only natural and probable consequences aiding and abetting involves both a target and a non-target offense, and the prosecution did not proceed on that theory. (See People v. Gentile, supra, 10 Cal.5th 830, 843-844 [describing the two forms of aiding and abetting], superseded by statute as stated in People v. Glukhoy, supra, 77 Cal.App.5th 576, 584.) CALJIC No. 3.01 properly described general aiding and abetting principles that applied to all of the charged offenses in Castellanos' case.
There were no instructions regarding excuse or justification.
We are not otherwise persuaded by Castellanos' argument that his case is analogous to Langi, supra, 73 Cal.App.5th 972 and People v. Maldonado (2023) 87 Cal.App.5th 1257. Those cases are distinguishable. In both cases, the appellate court held that the record of conviction did not preclude resentencing under section 1172.6 because the jury could have reasonably applied the instructions given on aiding and abetting and implied malice murder to impute malice to the defendant. (Maldonado, at p. 1267; Langi, at p. 984.) Neither case involved instructions that required the jury to find the defendant had the intent to kill, as was the case here. Castellanos' jury was not instructed on implied malice; unlike murder, attempted murder requires intent to kill.
The opinion in People v. Maldonado, supra, 86 Cal.App.5th 43, which Castellanos relied upon in argument before the trial court was vacated by People v. Maldonado, supra, 87 Cal.App.5th 1257, which he cites in his opening brief.
We further reject Castellanos' argument that the jury's finding that he intended to kill was undermined by the court's instruction under CALJIC No. 8.67 that the jury could find Castellanos guilty of willful, deliberate, and premeditated murder if the "would-be slayer . . . weigh[ed] and consider[ed] the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide[d] to kill and ma[de] a direct but ineffectual act to kill another person." CALJIC No. 8.67 concerns willfulness, premeditation, and deliberation, it does not implicate intent to kill. Moreover, the preamble to the instruction clearly indicates that the jury should only consider willfulness, premeditation, and deliberation if it has already found the defendant guilty of attempted murder. Assuming, as we must, that the jury understood and followed the instruction, CALJIC No. 8.67 had no impact on its determination that Castellanos harbored the intent to kill, as the jury would have already decided that when finding he committed attempted murder, before reaching the issues of willfulness, deliberation, and premeditation. (See People v. Buenrostro (2018) 6 Cal.5th 367, 431 [jurors presumed to understand and follow instructions given].)
Finally, Castellanos' arguments regarding the prosecutor's closing arguments are based on the prosecutor's emphasis of the trial court's instructions and on the evidence that Castellanos was motivated by a "gang culture mentality"-specifically, the gang expert's testimony that if one gang member is affronted, all will seek retribution. As we have discussed, the instructions given did not permit the jury to convict Castellanos of attempted murder without finding that he acted with intent to kill. The gang expert's testimony was circumstantial evidence of Castellanos' personal motive. The prosecutor did not argue that because one gang member intended to kill that intent could be imputed to Castellanos simply because he belonged to the same gang.
DISPOSITION
We affirm the trial court's order denying Castellanos' petition for resentencing under Penal Code section 1172.6.
WE CONCUR: KIM, J., LEE, J. [*]
[*] Judge of the Superior Court of San Bernardino County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.