Opinion
B333733
06-27-2024
THE PEOPLE, Plaintiff and Respondent, v. AARON CARRILLO, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. No Appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. BA069600, Eleanor J. Hunter, Judge. Affirmed.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
WEINGART, J.
Defendant Aaron Carrillo appeals from the denial of his petition for resentencing pursuant to Penal Code section 1172.6. We find no error and affirm.
All unspecified statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
An information filed on April 26, 1993, alleged that on December 13, 1992, Carrillo and another individual murdered Jose Sifuentes (§ 187, subd. (a); count 1) and attempted the premeditated and deliberate murder of Louie Chairez (§§ 187, subd. (a), 664; count 2). It further alleged as to both counts that Carrillo personally used a firearm (§ 12022.5, subd. (a)) and that a principal was armed with a firearm during the offenses (§ 12022, subd. (a)(1)).
At Carrillo's trial, the court did not instruct the jury on felony murder or the natural and probable consequences doctrine. It did instruct on aiding and abetting. On September 20, 1993, the jury found Carrillo guilty of first degree murder and attempted premeditated and deliberate murder, and found true the allegations that he personally used and was armed with a firearm. The court sentenced Carrillo to 25 years to life on the murder count, plus a consecutive five years for having personally using a firearm during that offense, plus a consecutive life sentence with the possibility of parole on the attempted murder count. The court stayed sentence on the remaining special allegations.
Carrillo appealed, and we affirmed his conviction and sentence. (People v. Carrillo (Feb. 6, 1995, B081172) [nonpub. opn.].) Carrillo thereafter filed numerous writs challenging his conviction and confinement. One such writ resulted in this court issuing an order to show cause requiring the trial court to conduct an evidentiary hearing. (People v. Carrillo (Jan. 22, 2008, B204531).) After holding the evidentiary hearing, the court denied the petition on April 9, 2010.
On March 15, 2023, Carrillo filed a petition for resentencing pursuant to section 1172.6. The court appointed counsel for Carrillo, and the People and Carrillo's counsel submitted briefing. On October 10, 2023, the court denied the petition at the prima facie stage, finding Carrillo was ineligible for relief as a matter of law. The resentencing court observed that the trial court did not give felony murder or natural and probable consequences instructions, and "the sole theory for the People of murder was a malice murder. And, in fact, it was-the People argued that it was first degree, and in order to get to first degree, you have to have the specific intent to kill, and the jury found that allegation to be true on the murder count and they also found the willful, premeditated, deliberate [allegations] to be true on the attempted murder count."
Carrillo now appeals the denial of resentencing relief. His appointed appellate counsel filed a brief raising no issues and requesting that we exercise our discretion to independently review the record for error pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. In Delgadillo, our Supreme Court established procedures for cases in which counsel determines that an appeal from an order denying postconviction relief lacks merit. In such cases, "(1) counsel should file a brief informing the court of that determination, including a concise recitation of the facts bearing on the denial of the petition; and (2) the court should send, with a copy of counsel's brief, notice to the defendant, informing the defendant of the right to file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the court may dismiss the matter." (Id. at pp. 231-232.) If the defendant does not file a supplemental brief, we "may dismiss the appeal as abandoned." (Id. at p. 232.) In that instance, we do "not need to write an opinion but should notify the defendant when [we] dismiss[ ] the matter." (Ibid.) Because a defendant who has been denied postconviction relief has no constitutional right to an appeal, we are not required to conduct an independent review of the record before dismissing the appeal, but we may conduct such a review at our discretion. (Id. at pp. 227-228, 232.)
If the defendant does file a supplemental brief or letter, we are "required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
On April 12, 2024, we notified Carrillo by letter of the nomerits brief filed by his counsel and informed him that he had 30 days to file a supplemental brief. We received Carrillo's supplemental brief on June 3, 2024. We excuse the tardiness in its filing and consider his supplemental brief on the merits.
In a declaration submitted with her brief, Carrillo's counsel averred that she sent Carrillo a copy of counsel's brief along with a copy of the entire record on appeal.
DISCUSSION
A. Standard of Review
"[O]ur standard of review is de novo. We independently review the denial of a resentencing petition at the prima facie stage." (People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238.)
The Legislature enacted what became section 1172.6 in 2018 as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The legislation's overall purpose was to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill added section 189, subdivision (e) "to amend the felony-murder rule," and added section 188, subdivision (a)(3) "to amend the natural and probable consequences doctrine." (People v. Gentile (2020) 10 Cal.5th 830, 842-843.) Senate Bill No. 775 (2021-2022 Reg. Sess.) later expanded section 1172.6 to allow persons convicted of attempted murder under the natural and probable consequences doctrine to apply for resentencing. (Stats. 2021, ch. 551, § 2.)
"The mental state, or mens rea, that must accompany each crime is an element of the offense. The mental state required for the crime of murder is the existence of malice, which may be either express or implied." (People v. Mumin (2023) 15 Cal.5th 176, 190.) "Because malice may be implied, second degree murder does not require a specific intent to kill. To elevate that offense to murder in the first degree on a malice theory, the defendant must act with a specific intent to kill that is formed willfully, deliberately, and with premeditation." (Ibid.) A first degree murder committed willfully, deliberately, and with premeditation is done with "express" malice. (§ 188, subd. (a)(1).)
"[A]ttempted murder requires a specific intent to kill. (People v. Mumin, supra, 15 Cal.5th at p. 190.) Formerly, such malice could be implied in an attempted murder prosecution"' "when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses."' [Citation.] [¶] . . . The natural and probable consequences doctrine provides that' "[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime."' [Citation.]" (People v. Offley (2020) 48 Cal.App.5th 588, 595.) Now, because of Senate Bill No. 775, implying malice via the natural and probable consequences doctrine can no longer support an attempted murder conviction.
As relevant here, section 1172.6 provides a mechanism for a defendant to seek resentencing where (1) the information allowed the murder prosecution to proceed under a theory of felony murder, the natural and probable consequences doctrine, or any other theory under which malice was imputed to the defendant, and/or the attempted murder prosecution to proceed under the natural and probable consequences doctrine, and (2) the defendant could not now be convicted of murder and/or attempted murder under the present law. (§ 1172.6, subd. (a).) Carrillo does not meet this eligibility test, because he was not prosecuted based on felony murder, the natural and probable consequences doctrine, or any other theory under which malice could have been implied or imputed to him.
C. Carrillo Did Not Establish a Prima Facie Case for Relief Under Section 1172.6
To find Carrillo guilty of first degree murder, the jury was required to find the murder was a willful, deliberate, and premediated killing with express malice aforethought. In convicting Carrillo of attempted murder, the jury found true the special allegation that the attempted murder was willful, deliberate, and premeditated. These findings of express malice on the murder and attempted murder charges make Carrillo ineligible for relief under section 1172.6.
Carrillo's reliance on People v. Campbell (2023) 98 Cal.App.5th 350 to argue we may not rely on the jury's verdict is misplaced. The jury in that case was instructed on the natural and probable consequences doctrine and its verdict did not indicate whether it relied on that doctrine in convicting the defendant of murder. (Id. at pp. 369-370.) The Campbell court held a true finding on a gang enhancement did not negate the possibility the jury relied on the natural and probable consequence doctrine in convicting the defendant. (Id. at p. 370.) Here, there was no natural and probable consequences instruction and we do not rely on any true gang finding in holding Carrillo ineligible for section 1172.6 relief.
Carrillo's supplemental brief argues the aiding and abetting instruction given at his trial may have permitted the jury to impute malice. In support of this assertion, he relies on three cases: People v. Powell (2021) 63 Cal.App.5th 689, People v. Langi (2022) 73 Cal.App.5th 972, and People v. Maldonado (2023) 87 Cal.App.5th 1257. ~(SB 9-13)~
Carrillo also argues the jury's true finding on the special allegation that he personally used a firearm does not establish as a matter of law that he was the actual shooter. We agree, as the jury instruction's definition of "use" included brandishing a gun as well as firing it. We therefore focus on his argument concerning the aiding and abetting jury instruction.
Powell and Langi both involve convictions for second degree murder, which as explained above can be based on the killer acting with implied malice instead of express malice, where the court gave an aiding and abetting instruction. Both cases found that the standard aiding and abetting instruction "creates an ambiguity under which the jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice." (People v. Langi, supra, 73 Cal.App.5th at p. 982, fn. omitted, citing People v. Powell, supra, 63 Cal.App.5th at pp. 712-714.) Because "the perpetrator's purpose [in a second degree murder] need not have been to kill the victim, the aider and abettor's knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill." (People v. Langi, supra, at p. 982.) Maldonado extended this logic to a first degree lying-in-wait murder, because such a crime can essentially be an implied malice murder accompanied by lying-in-wait: the required" 'state of mind simply is the intent to watch and wait for the purpose of gaining advantage and taking the victim unawares in order to facilitate the act which constitutes murder. [Citation.] It does not include the intent to kill ....' [Citation.]" (People v. Maldonado, supra, 87 Cal.App.5th at p. 1263.) Thus, a conviction for first degree lying-in-wait murder can be based on evidence that the perpetrator acted with implied rather than express malice. (Id. at p. 1267.)
Powell, Langi, and Maldonado have no application to Carrillo's convictions, which were not in the second degree or potentially based on a first degree lying-in-wait theory. Instead, Carrillo was convicted of willful, deliberate, and premeditated murder and willful, deliberate, and premeditated attempted murder. Carrillo does not dispute, nor could he, that if the jury found him guilty on both charges as a principal he is ineligible for relief. To the extent the jury relied on the aiding and abetting instruction when convicting on either charge, that instruction required the jury to find Carrillo acted to promote the murder and attempted murder "with knowledge of the unlawful purpose of the perpetrator." (CALJIC No. 3.01.) For the first degree murder conviction, that required finding Carrillo knew the perpetrator was acting with "express malice aforethought." (CALJIC No. 8.20.) For the attempted murder conviction, that required finding Carrillo knew the perpetrator was acting with "a clear, deliberate intent to kill" (CALJIC No. 8.67), in other words, express malice. Given these requirements, there is no possibility that Carrillo was convicted on a theory that imputed another's malice to him or that he could have assisted the perpetrator(s) without knowing that they intended to kill the victims.
Given these jury instructions, the verdict thus reflects all the factual findings necessary to support the murder and attempted murder convictions under current law, and conclusively refutes Carrillo's allegation that he could no longer be convicted of murder and/or attempted murder because of the changes to sections 188 and 189. (People v. Curiel (2023) 15 Cal.5th 433, 465.) Carrillo was therefore ineligible for relief as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 971.) The trial court accordingly did not err in summarily denying the resentencing petition without an evidentiary hearing. (People v. Delgadillo, supra, 14 Cal.5th at p. 233 [a defendant is not entitled to relief, and a resentencing petition properly denied at the prima facie stage, where the record of conviction makes ineligibility for relief clear].)
Carrillo additionally argues the trial court erred in not considering his youthful age (19 years old) at the time of his offenses, which Carrillo argues "was relevant to whether he acted with malice." As the court properly denied his resentencing petition at the prima facie stage and Carrillo was not entitled to an evidentiary hearing, the court committed no error in refusing to consider such evidence. For similar reasons, we deny Carrillo's request that we take judicial notice of the December 15, 2009 reporter's transcript from the evidentiary hearing on his habeas writ.
Finally, we decline counsel's request that we independently review the record, as nothing before us suggests such an exercise is necessary. (People v. Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The order denying Carrillo's resentencing petition is affirmed.
We concur: ROTHSCHILD, P. J. BENDIX, J.